Citation Nr: 1320459 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 08-35 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In a January 2012 decision, the Board denied the claim of entitlement to service connection for bilateral hearing loss and remanded the issues of entitlement to service connection for hepatitis C, entitlement to service connection for posttraumatic stress disorder (PTSD), and entitlement to service connection for a psychiatric disorder, other than PTSD, to include a depressive disorder, and an adjustment disorder, for additional development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum decision dated in February 2013, the Court vacated the part of the Board's decision which denied entitlement to service connection for bilateral hearing loss. The Court also determined that the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss was before the Board and necessitated a remand under Manlincon v. West, 12 Vet. App. 238 (1999), for the issuance of a statement of the case. Thus, the issues are appropriately listed on the title page. With respect to the issues remanded by the January 2012 Board decision, these issues have not yet been certified for review by the Board and are not before the Board at this time. Additional evidence has been associated with the claims file since the most recent supplemental statement of the case. The Veteran did not submit a waiver with respect to the evidence. However, the evidence, consisting of VA treatment records, is repetitive and cumulative with respect to the evidence already reviewed by the RO in connection with the issues on appeal. Therefore, a waiver is not required. See 38 C.F.R. § 20.1304 (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 asserts that his bilateral hearing loss is related to his period of active service. In a January 2012 decision, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss, in part, based on a December 2009 VA examination report. The report shows that the Veteran stated that he served in the United States Navy and participated in combat activity. The Veteran reported that his hearing loss existed since 2007 and it occurred suddenly. He reported that his duties during military service consisted of being a steel worker and that he fired weapons with his right hand and did not use hearing protection. After military service, he rode motorcycles or personal aircraft, was a mechanic for one year with hearing protection, and used other loud recreational equipment without using any hearing protection. The examiner listed a diagnosis of sensorineural hearing loss in both ears. The examiner opined: ". . . hearing loss and tinnitus are less than likely due to noise in the service. This is based on reported date of onset of sudden hearing loss and tinnitus [in] 2007." The Board found the VA examiner's opinion to be adequate. In the February 2013 Memorandum decision, the Court determined that the December 2009 VA examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Court stated that the examiner committed two errors in the examination. First, the examiner applied a more stringent standard than required when she opined that hearing loss was less than likely due to noise in the service. In addition, the Court found the examiner's rationale for the opinion to be insufficient. The examiner's rationale was simply based on the reported date of the onset of hearing loss in 2007. The examiner did not appear to take into account the Veteran's in-service noise exposure. Therefore, in order to comply with the Court's Memorandum decision, the Board finds that the Veteran should be provided a new VA examination with respect to his claim of entitlement to service connection for bilateral hearing loss. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr, id. In the January 2012 decision, the Board noted that the Veteran alleged in his November 2008 VA Form 9 that his hearing loss may also be due to treatment and medication by VA for his hepatitis C. The Board explained that the Veteran appeared to have made a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral hearing loss as a result of VA treatment. The issue was referred to the RO for appropriate action. In the Memorandum decision, the Court determined that the Board erred when it referred the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss for initial adjudication. The Court noted that the issue was raised by the Veteran in the November 2008 VA Form 9 and adjudicated by the July 2010 Supplemental Statement of the Case (SSOC). The Court determined that the August 2010 communication from the Veteran was considered to be a notice of disagreement which necessitated a remand for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). A review of the claims file shows that the RO effectively complied with the Court's order and decision by issuing an SSOC in May 2013 with respect to the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss. Even so, in order to provide the Veteran every possible consideration and the requisite amount of time to perfect the appeal with respect to the issue, the Board finds that the RO should issue a new SOC and advise the Veteran that to vest the Board with jurisdiction over the issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2012). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case (SOC) with respect to the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for bilateral hearing loss. The Veteran should be advised that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects the appeal as to this issue, the RO/AMC should undertake all appropriate action. 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 a copy of this remand. Following examination of the Veteran and review of the claims file, 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 had its onset in active service or is otherwise causally or etiologically related to active service. The examiner should note that the Veteran's lay statements with respect to in-service noise exposure are competent and credible evidence and noise exposure is conceded as a result of the Veteran's military occupational specialty as a steel worker. A complete rationale must be provided for any opinion expressed. 3. The RO/AMC should thereafter readjudicate the claim of entitlement to service connection for bilateral hearing loss. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal 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). _________________________________________________ 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).