Citation Nr: 1304178 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-38 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty in the military from July 1945 to July 1946, so during World War II. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claims require further development before being decided on appeal, the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Another VA compensation examination needs to be scheduled concerning these claims for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). A VA compensation examination previously was scheduled for January 2011 for a medical nexus opinion concerning whether these claimed conditions are related or attributable to Veteran's military service. He did not report for that examination, however. In a January 2013 statement since submitted, he explained that he had not received adequate notice of that examination since he only had received notice of it approximately two weeks before it was scheduled to occur). That apparently did not allow him enough time to prepare for it, including obtain the necessary transportation. According to 38 C.F.R. § 3.655 (2012), when a Veteran fails to report for an examination for an original service-connection claim and does not provide good cause, the claim is to be decided on the evidence of record. Here, though, the Veteran has provided this required good-cause explanation for failing to report to his examination previously scheduled. And this examination and, as importantly, the opinion that will be obtained from it, is necessary to properly decide his claims. His examination therefore needs to be rescheduled. Accordingly, these claims are REMANDED for the following additional development and consideration: (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. Reschedule the Veteran's VA compensation examination to first confirm he has sufficient hearing loss to be considered a ratable disability according to the threshold minimum requirements of 38 C.F.R. § 3.385. If confirmed that he does, then a medical nexus opinion also is needed concerning the likelihood (very likely, as likely as not, or unlikely) his hearing loss disability is related or attributable to his military service, including especially to repeated exposure to excessively loud noise and consequent injury, i.e., acoustic trauma. A medical nexus opinion is also needed concerning the etiology of his tinnitus, regardless. In making these determinations, the examiner must consider the Veteran's lay testimony regarding the extent of noise exposure he had during his service and concerning how long he has had hearing loss and tinnitus because he is competent, even as a layman, to proclaim having experienced difficulty hearing and ringing in his ears since his military service. Moreover, there must be consideration of this claimed injury (acoustic trauma) in service, even if the Veteran was not treated for hearing loss or tinnitus while in service, so even if not documented in his service treatment records (STRs). Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). See, too, Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records). But see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). So the Veteran's testimony concerning this also must be considered in light of the medical and other evidence of record to determine whether his lay testimony, even if competent, is also credible (a factual determination the Board eventually has to make) to consequently ultimately have probative value. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, for purposes of this opinion, the examiner should consider whether the type of hearing loss shown is consistent with concluding it is noise-induced, same for the tinnitus also claimed. If, as an example, the examiner determines instead the Veteran's hearing loss and tinnitus more relate to his advanced age, then there needs to be explanation of why this is indeed more likely the case. Similarly, if it is determined the type of hearing loss and tinnitus shown would not have delayed onset, rather be more immediate, then this, too, needs to be explained. All diagnostic testing and evaluation deemed necessary by the examiner therefore must be performed. It also is essential the examiner review the evidence in the claims file, including a complete copy of this remand, for the pertinent history. *Ensure the Veteran receives notice of this examination allowing him enough time to prepare for it, including insofar as obtaining the necessary transportation. Put a copy of this letter in his claims file and ensure it is sent to his current address of record more than two weeks prior to the examination date. Also ensure the notice sent is not returned as undeliverable or, if it is, that attempts are made to contact the Veteran at whatever new address he has. 2. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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. 38 C.F.R. § 20.1100(b) (2012).