Citation Nr: 1302977	
Decision Date: 01/28/13    Archive Date: 02/05/13

DOCKET NO.  12-10 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a perforated right tympanic membrane.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel
INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from July 1945 to October 1947.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for tinnitus, assigning a 10 percent evaluation effective September 30, 2010; and denied service connection for bilateral hearing loss and a perforated right tympanic membrane.  In October 2011, the Veteran submitted a notice of disagreement with the denials and subsequently perfected his appeal in April 2012.  His case is currently under the jurisdiction of the VA RO in Indianapolis, Indiana.

In July 2012, the Veteran presented sworn testimony during a video conference hearing in Indianapolis, Indiana, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's claims file.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


REMAND

In September 2012, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a)  (2012). The examiner was asked to address, in pertinent part, whether it was as likely as not that the Veteran's hearing loss and perforated tympanic membrane had their onset in service or were otherwise etiologically related to his active service, to include noise exposure and his documented diving experiences.  The requested opinion was provided in October 2012 and associated with the Veteran's VA claims folder.  The VHA opinion has also been provided to the Veteran, and he was afforded 60 days to provide additional argument or evidence.

In January 2013, the Veteran submitted a statement with new information regarding alleged treatment in service for tympanic membrane perforations.  He also expressly indicated that he did not waive consideration by the Agency of Original Jurisdiction (AOJ) and that he wished for his case to be remanded to the AOJ for initial consideration of this new lay evidence.  In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence.  See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003); 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1304(c) (2012).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Review the all evidence added to the Veteran's claims file since the June 2012 supplemental statement of the case and complete any additional development deemed necessary.

2.  After completing the above action, the Veteran's claims of entitlement to service connection for bilateral hearing loss and a perforated right tympanic membrane should be readjudicated.  If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).



_________________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  See 38 C.F.R. § 20.1100(b) (2012).