Citation Nr: 1317985 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-16 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from March 1966 to February 1968 and from November 1971 to November 1975. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, a Travel Board hearing was held at the RO before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The VLJ who conducted the January 2010 hearing, however, is no longer employed by the Board. In April 2013, the Veteran was informed of his right to appear for another hearing, he expressed that he did not wish to do so. The claim for service connection for a bilateral hearing loss disability was remanded by the Board in May 2010 for further development. In a June 2011 decision, the claim was denied. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board's June 2011 decision denying service connection for a bilateral hearing loss disability and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in October 2012. 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 appeals the denial of service connection for a bilateral hearing loss disability. When this issue was before the Board in May 2010, it was determined that further development was needed to include obtaining treatment records and a VA examination. In the October 2012 JMR, it was found that while some of the May 2010 remand directives were followed, some were not to include obtaining records from the West Los Angeles VA Medical Center, Kaiser Permanente in Los Angeles and private records from Dr. Powell. It was also found that while the Veteran was afforded a VA examination, there is no indication if such examination was provided based upon a complete record and understanding of the Veteran's disability. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Court has determined that the remand May2010 directives have not been fully satisfied, another remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to obtain the names and addresses of all VA, private, or other government health care providers and treatment centers where he has been treated for any hearing loss since 1975. After securing the necessary release(s), obtain any such records that have not been previously secured. The RO must conduct such search as outlined in the May 2010 JMR to include obtaining more recent records from the West Angeles VA Medical Center, Kaiser Permanente in Los Angeles, and private records from Dr. Powell. If attempts to obtain any of these records are unsuccessful, the claims file should contain documentation of the attempts made. The Veteran and his representative also should be informed of the negative results and be given opportunity to secure the records. 2. After the above development is completed and if additional records are obtained, arrange for the Veteran to undergo VA audiometric testing by an audiologist to determine the nature and etiology of his bilateral hearing loss. The claims file must be made available to the examining audiologist for review in conjunction with the audiometric testing. The audiologist should ascertain what type of employment or activities the Veteran engaged in following his separations from service. The findings should be reported in detail. If, and only if, the audiometric testing demonstrates that the Veteran meets the 38 C.F.R. § 3.385 standard for hearing loss in either or both ears, the audiologist should respond to the following specific questions and provide a full statement of the basis for the conclusions reached: a. On the basis of the clinical record and the known development characteristics of the diagnosed hearing loss, can it be concluded that any such currently diagnosed hearing loss existed at the time of Veteran's separation from the Army in February 1968? Prior to the Veteran's entrance onto active duty with the Coast Guard in November 1971? At the time of the Veteran's separation from the Coast Guard in November 1975? The examiner should discuss audiometric testing results from 1965 to the present, as well as the Veteran's description of his in-service hearing loss. b. When is the first documented record of the existence of hearing loss for the Veteran? The examiner should discuss the Veteran's description of his exposure to acoustic trauma during service, as well as the audiometric testing results of record. c. Is the Veteran's currently claimed hearing loss etiologically related to any incident of service, including exposure to weapons fire/diesel generators/shipboard engines, or is the claimed hearing loss more likely due to some other cause or causes, including post-service noise exposure? In assessing the relative likelihood as to origin and etiology of the Veteran's hearing loss, the examiner should apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After completing any additional notification and/or development action deemed warranted by the record, review the record, including any newly acquired evidence, and re-adjudicate the issue on appeal. If the scheduling of any kind of medical examination, or the obtaining of a medical opinion from any type of specialist such as an otolaryngologist, is necessary to adjudicate the hearing loss service connection issue, especially in light of any newly received information, that development should be accomplished. Ensure that all theories of service connection are considered. 4. If the benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. The appeal should then be returned to the Board, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).