Citation Nr: 1307908 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 05-15 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board denied service connection for bilateral hearing loss in an April 2008 decision; however, that decision was vacated when the Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) in April 2010. 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 Veteran's claim for entitlement to service connection for bilateral hearing loss was remanded by the Board in August 2011 in compliance with an April 2010 Court Order which granted a JMR. In its August 2011 remand, the Board requested that the Veteran be provided with a new VA examination which converts the audiometric findings contained in the service treatment records (particularly the June 1962 separation examination) from ASA units to ISO units, as required for all audiometric tests conducted prior to October 31, 1967. The Board noted that the Veteran's pure tone thresholds at separation from service were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 - 10 LEFT 15 15 10 - 10 Although the Veteran was provided with a VA examination addressing the etiology of his bilateral hearing loss in August 2011, the Board does not find the opinion provided to be adequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). The August 2011 VA examiner concluded that the Veteran's current bilateral hearing loss is not related to any in-service acoustic trauma because his separation examination showed normal hearing sensitivity, bilaterally, at the time of discharge. An opinion that bilateral hearing loss is not related to service solely because it did not manifest in service is not an adequate explanation for why hearing loss is not related to in-service noise exposure. In that regard, whether or not the Veteran's service treatment records show bilateral hearing loss during service, service connection can still be established if medical evidence shows that the current hearing loss is actually due to incidents during service. 38 C.F.R. § 3.303(d) (2012); see also Hensley v. Brown, 5 Vet. App. 155 (1993). Further, the VA examiner did not address the conversion of the audiometric findings in the separation examination from ASA to ISO units, and whether hearing loss was shown when the results were properly converted, as directed by the Board in its August 2011 remand. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, Veteran should be provided with a new VA examination addressing the etiology of his bilateral hearing loss. The examiner should provide a discussion of whether the audiometric findings from the June 1962 separation examination, noted in the prior VA examination and the Board's August 2011 remand, were converted to the current standards. Additionally, as the Veteran's service treatment records are not in the claims file, the examiner should presume that the Veteran's lay statements with regard to in-service acoustic trauma and any symptoms experienced during service or thereafter are competent and credible evidence. The Board acknowledges that, after the Veteran was provided with the August 2011 VA examination, his claims file was lost. Although the RO has complied with the procedures for locating a lost claims file, as provided in M21-1MR, additional efforts should be made to rebuild the claims file. In that regard, it is not clear whether the RO searched for any available rating decisions, statements of the case, supplemental statements of the case, prior Board decisions, Court Orders, Joint Motions for Remand, Briefs, VA treatment records, or prior VA examinations, as those documents are not associated with the claims file. Accordingly, the RO should again conduct a search for all available evidence, including any rating decisions, statements of the case, supplemental statements of the case, prior Board decisions, Court Orders, Joint Motions for Remand, Briefs, VA treatment records, or prior VA examinations, which may be relevant to the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Take all procedurally appropriate actions to rebuild the Veteran's original claims file in accordance with M21-1MR, Part III, Chapter 4, including associating all past rating decisions, statements of the case, supplemental statements of the case, prior Board decisions, Court Orders, Joint Motions for Remand, Briefs, VA treatment records, VA examination reports, or other evidence with the rebuilt claims file. Associate all pertinent documentation and inquiries with the claims file. Document all attempts to secure the Veteran's original claims file. Notify the Veteran and his representative of all efforts and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. For any unavailable U.S. Government records, to include the Veteran's service treatment records, the RO must indicate in writing that further attempts to locate or obtain such records would be futile. The Veteran and his representative must then be given an opportunity to respond. 2. Schedule the Veteran for a new VA audiology examination to determine the current nature and etiology of any bilateral hearing loss found. The examiner must review the claims file in conjunction with the examination, and the examination should include pure tone threshold testing (in decibels) and Maryland CNC testing. Based on the examination findings, the claims file review, and the lay history provided by the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any bilateral hearing loss found is related to in-service noise exposure. The examiner should note the results of the June 1962 separation examination, documented in the prior VA examination and August 2011 Board remand, and if possible, determine whether those results were converted from ASA to ISO units. Additionally, as the Veteran's service treatment records are not in the claims file, the examiner should presume that the Veteran's lay statements with regard to in-service acoustic trauma and any symptoms experienced during service or thereafter are competent and credible evidence. A complete rationale must be provided for any opinion expressed. 3. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the Veteran's claim. If any of the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).