Citation Nr: 1305461	
Decision Date: 02/14/13    Archive Date: 02/21/13

DOCKET NO.  09-42 863	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to service connection for bilateral hearing loss on a direct basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from January 1972 to December 1975.

This matter comes to the Board of Veterans' Appeals  (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied service connection for bilateral hearing loss.  The rating decision also denied VA compensation under 38 U.S.C.A. § 1151 for residuals of Gentamicin toxicity, to include vertigo, kidney problems, tremor, memory loss and increased bilateral hearing loss.  

In a December 2011 decision/remand, the Board remanded the 1151 issue.  A September 2012 rating decision granted VA compensation under 38 U.S.C.A. § 1151 for residuals of Gentamicin toxicity, to include vertigo, kidney problems, tremor and memory loss.  

In the December 2011 decision/remand, the Board also denied service connection for bilateral hearing loss on a direct basis.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  The parties submitted a Joint Motion for Partial Remand (Joint Motion) in July 2012.  By order dated in July 2012, the Court granted the Joint Motion and remanded the matter for compliance with its instructions.  

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


REMAND

The Joint Motion noted that while a July 2008 VA examiner found no evidence of ear disease in the Veteran's service medical or VA treatment records, the examiner ignored a March 1973 notation in the Veteran's service treatment records of otitis externa and accompanying complaints of deafness in the right ear.  The Joint Motion stated that a remand was warranted for a new medical opinion which addressed the relationship, if any, between the Veteran's inservice otitis externa treatment and his current hearing loss disability.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any hearing loss disability that may be present.  The claims file must be made available to the examiner.

Following a review of the relevant medical evidence in the claims file, the Veteran's history of otitis externa and complaints of right ear deafness during service and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current hearing loss disability is related to the Veteran's inservice otitis externa treatment and accompanying complaints of deafness in the right ear, as reflected in the Veteran's service treatment records. 

The examiner is requested to provide a rationale for any opinion expressed.  

2.  Then, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

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

This claim 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).



_________________________________________________
M. E. LARKIN
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).