Citation Nr: 1320819 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-20 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from May 1968 to December 1971. This matter came to the Board of Veterans' Appeals (Board) from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in September 2010 and November 2012 for further development. 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 RO's attention is directed to the fact that this case has been remanded on two prior occasions. It is unfortunate that there has still not been compliance with the Board remand directives, and so the case must once again be remanded. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. In its September 2010 and November 2012 remands, the Board directed the VA examiner to reference past VA examinations and Dr. Pai's medical opinion, which the November 2010 and January 2013 VA examiners failed to do. As also noted in the previous remand, in reviewing audiological testing upon entering service in September 1967 and exiting service in November 1971, it appears that test results suggest some worsening of hearing acuity in the right ear (specifically at 1000 Hz). On the authorized audiological evaluation in September 1967, pure tone thresholds, in decibels, (when converted from American Standards Association (ASA) units to International Standards Organization (ISO) units) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 - 5 On the authorized audiological evaluation in November 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 5 5 5 This is potentially significant since "if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes." Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Although the Board regrets further delay, the case must be returned to the RO for another examination and opinion. Accordingly, the case is REMANDED for the following actions: 1. The claims file should be forwarded to the January 2013 VA examiner for review and an addendum to the examination report providing rationales with reference to service treatment records (including the upward shift of hearing acuity in the right ear), Dr. Pai's medical opinion, and past VA audiolgical examination reports. If the June 2011 VA examiner is no longer available, the RO should schedule the Veteran for another VA audiological examination. It is imperative that the claims file be provided to the examiner for review. All appropriate audiological testing should be performed. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that any current bilateral hearing loss is related to acoustic trauma during service? b) Is it at least as likely as not (a 50% or higher degree of probability) that any current tinnitus is related to acoustic trauma during service? A rationale should be provided with reference to service treatment records (including the significance of any upward shift of hearing thresholds in the right ear during service), Dr. Pai's medical opinion, and past VA audiological examination reports. 2. For the purpose of avoiding further remand, the RO should review the examination report/opinion to ensure that it is responsive to the above directives. If not, the RO should return the report/opinion to the examiner for an addendum. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues of entitlement to service connection for bilateral hearing loss and bilateral tinnitus. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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). _________________________________________________ ALAN S. PEEVY 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).