Citation Nr: 1321395 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-44 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss, to include secondary to the service-connected tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas. A February 2009 VA examiner opined that tinnitus is as likely as not a symptom associated with the bilateral hearing loss. Service connection is in effect for tinnitus. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Therefore, VA must consider a secondary service connection theory of entitlement for the claim of entitlement to service connection for bilateral hearing loss. In light of the above, the issue is as stated on the title page. 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 Given that the bilateral hearing loss claim is now also being considered on a secondary basis theory of entitlement, the AMC must provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). A new VA examination is necessary to address whether the bilateral hearing loss was caused or aggravated by the service-connected tinnitus. In his October 2008 claim, the Veteran reported that he underwent audiometric testing at the Kansas City VA Medical Center in July or August 2008. The RO obtained records from that facility from October 2008 to September 2009. The AMC should obtain all records from that facility from July 2008 to September 2008 and from September 2009 to the present. The RO last asked the Veteran to identify treatment for his hearing loss in November 2008. The AMC should ask the appellant to identify all treatment for his hearing loss. Accordingly, the case is REMANDED for the following action: 1. The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 2. The AMC should ask the Veteran to identify all treatment for his bilateral hearing loss. The AMC should obtain all identified records, and the appellant's assistance should be requested as needed. Regardless of the claimant's response, the RO should obtain all records from the Kansas City VA Medical Center from July 2008 to September 2008 and from September 2009 to the present. Any obtained records should be associated with the appellant's claims file. 3. Thereafter, schedule the Veteran for a VA audiological examination to determine the nature and extent of his bilateral hearing loss, to include whether the bilateral hearing loss is related to service or is secondary to the tinnitus. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his bilateral hearing loss. Accepting that the Veteran had in-service noise exposure, the examiner should provide written responses to the following inquiries: (a) is it at least as likely as not (probability of 50 percent or greater) that the bilateral hearing loss is related to active service, to include in-service noise exposure, and (b) is it at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral hearing loss was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected tinnitus? If the examiner finds that the bilateral hearing loss was aggravated by the service-connected tinnitus, then he/she should quantify the degree of aggravation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the development requested is completed, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC must implement corrective procedures at once 5. Thereafter, the AMC must readjudicate the issue on appeal. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DAVID L. WIGHT 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).