Citation Nr: 1318280 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-18 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2011; a transcript of that hearing is associated with the claims file. The issue of a waiver of overpayment in the amount of $6,811.00 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Additionally, the Veteran submitted an April 2012 correspondence in which he stated that the following issues are being re-certified to the Board following a statement of the case: (1) entitlement to service connection for bladder cancer, and (2) a higher initial rating for prostate cancer. The Board notes that neither of these issues has been adjudicated by the AOJ. In fact, the Veteran is not service connected for prostate cancer. The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 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 In the prior remand, the Board pointed out that the Veteran's hearing was clinically abnormal at his November 1966 enlistment examination. Consequently, there was a question as to whether the Veteran's hearing loss predated service. However, his separation examination report dated November 1968 demonstrated normal hearing. Additionally, the Veteran underwent audiometric testing in June 1988-twenty years after discharge from service-at which time he had normal hearing. Eventually, he was diagnosed with bilateral sensorineural hearing loss. Given the numerous findings of normal hearing after the abnormal findings in the November 1966 enlistment examination report, the Board questioned whether the November 1966 findings were reliable. The Board remanded the claim so that a VA examiner could address whether the November 1966 enlistment examination findings are reliable, and whether the Veteran's hearing loss predated service. The RO scheduled the Veteran for a VA examination that took place in March 2012. Unfortunately, none of the Board's questions were satisfactorily answered. With regard to whether the November 1966 enlistment examination findings were reliable, the March 2012 examiner stated that they were reliable. However, the Board specifically stated that "If the examiner finds that the November 1966 audiometric data is reliable, he or she is instructed to take as conclusive fact that the Veteran's hearing was defective on entrance into military service and that he is not due the presumption of soundness as to that disorder." Despite opining that the November 1966 data was reliable, the examiner later stated that hearing loss did not exist prior to service. This was in direct conflict with the Board's instructions. Additionally, the Board notes the examiner was to provide a rationale for any opinion expressed. The examiner was to discuss the Veteran's grenade incident in basic training; the lack of any treatment subsequent to that incident; the October 1967 medical profile on which the Veteran was placed for his noted bilateral hearing loss; and the Veteran's lay testimony that such hearing loss has been constant and continuous since that incident in service. None of these subjects were discussed. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. Schedule the Veteran for a VA audiologic examination (with an examiner other than the individual who performed the March 2012 examination). in order to determine whether his bilateral sensorineural hearing loss is related to or aggravated by military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner is asked to diagnose any bilateral sensorineural hearing loss found. The examiner is then asked to address the following: (a) Whether the audiometric data from the November 1966 enlistment examination is deemed reliable, particularly in light of the later audiometric examinations in November 1968 and June 1988 demonstrating normal hearing. The examiner should discuss whether such a finding of hearing loss at enlistment is consistent with established medical principles in light of the subsequent evidence of record. (b) If the examiner finds that the November 1966 audiometric data is reliable, he or she is instructed to take as conclusive fact that the Veteran's hearing was defective on entrance into military service and that he is not due the presumption of soundness as to that disorder. Given that conclusive fact, the examiner should then opine whether the Veteran's hearing loss was aggravated beyond the normal progression of that disease (e.g. made permanently worse) by military service. The examiner should discuss the Veteran's grenade incident in service during basic training, as well as the lack of any treatment subsequent to that incident. The examiner should also discuss the October 1967 medical profile on which the Veteran was placed for his noted bilateral hearing loss. (c) If the examiner finds that the November 1966 audiometric data is not reliable in light of the other evidence of record, the examiner should then opine whether the Veteran's bilateral sensorineural hearing loss is more likely, less likely, or at least as likely as not (50 percent for greater probability) due to or caused by military service, to include acoustic trauma as a result of a claimed grenade incident during a training exercise. The examiner should also discuss the Veteran's lay testimony that such hearing loss has been constant and continuous since that incident in service, and that he was placed on a medical profile in October 1967 because of noted bilateral hearing loss. The examiner should further discuss the lack of any treatment in service following that incident, as well as the Veteran's normal hearing on separation in November 1968. Finally, the examiner should fully consider each examination of record in his or her opinion, including: the June 1988 VA examination demonstrating normal hearing; the March 2007 VA examination and subsequent negative nexus opinion in the May 2007 addendum; the March 2010 VA examination and negative nexus opinion; and, the August 2009 private physician's positive nexus opinion. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Following the examination, the RO should review the examination report to insure that it fully complies with the Board's instructions. 4. Following the above development, the RO should review the claims file and readjudicate the Veteran's claim of service connection for bilateral sensorineural hearing loss. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ ERIC S. LEBOFF 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).