Citation Nr: 1313698 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-18 769A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from March 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2011. A transcript of the hearing has been associated with the Veteran's claims file. In September 2011, the Board denied entitlement to service connection for dizziness, headaches and scarring due to a head injury and remanded the three issues identified above for additional development. REMAND The September 2011 Board remand included instructions to provide the Veteran with a VA audiological examination to determine whether the Veteran had a hearing loss pursuant to VA regulations and whether he had hearing loss or tinnitus that was related to military service. The instructions required the examiner to address a March 1965 "Group Screening Audiogram," which appeared to show an audiological examination of the Veteran. The Veteran was provided with the audiological examination in November 2011; which reflected a hearing loss in both ears under VA regulations. 38 C.F.R. § 3.385 (2012). However, the examiner noted in his opinion that the March 1965 audiological examination was not available for review. (The examination report was in the envelope with other of the Veteran's service treatment records at the bottom of the center section of claims file and is still there.) Review of this examination report by the audiologist is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As the determination of the Veteran's claims for service connection for hearing loss and tinnitus could affect the claim for entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU), the Board finds that that claim is inextricably intertwined and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the VA examiner who provided the November 2011 VA examination in order to provide an addendum opinion as to whether the Veteran's hearing loss is related to service. The examiner should specifically address the March 1965 audiological report (prepared 2 days after entry onto active duty) in the Veteran's service treatment records envelope, and must then provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any currently diagnosed hearing loss or tinnitus is related to his period of military service, and particularly to his claimed in-service exposure to acoustic trauma while working as a boilermaker. The reviewer must specifically address the Veteran's claim that he first experienced hearing loss and tinnitus during his time in service. The examiner should also address the effect that hearing loss and tinnitus have on the Veteran's ability to obtain or retain gainful employment. The examiner must set forth the complete rationale for the opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate. If the examiner concludes that hearing loss or tinnitus did not begin during military service, or is not related to military service, an explanation should be provided for why the Veteran's statements regarding onset in service and continuity of symptoms thereafter are inaccurate. Citations to the record or relevant medical principles should be included as necessary to explain the examiner's opinions. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the appellant and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 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). _________________________________ MARK F. HALSEY 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 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).