Citation Nr: 1322285 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 06-12 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the course of the appeal, jurisdiction over the Veteran's case was transferred to the Montgomery, Alabama, RO. In an April 2011 decision, the Board denied the Veteran's claim of entitlement to service connection to right ear hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and, in a July 2012 decision, the Court set aside the Board's decision and remanded it to the Board to further address evidentiary deficiencies identified in the Court's decision. In a May 2013 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a June 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim on appeal. The Board is cognizant of the facts that the Veteran's case has been in adjudicative status for several years and that it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending claim. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As the Board's Remand instructions in the present appeal have not been complied with, the case must be remanded again so that this may be accomplished. In the May 2013 Remand, the Board instructed that the claims file be reviewed by an appropriate specialist in order to provide an addendum medical opinion as to whether the Veteran's right ear hearing loss was caused by or a result of service, to include acoustic trauma sustained therein (which was conceded by VA when it granted service connection for the left ear hearing loss and tinnitus). The examiner was asked to provide a detailed explanation for his/her conclusions including a discussion of the significance, if any, of the shifts in hearing acuity shown on testing in service and following military discharge. The examiner was also to specify whether those shifts in hearing acuity (even if not meeting the VA criteria for hearing loss) represent more than the expected progression of hearing changes. Additionally, the examiner was requested to address the Veteran's lay testimony regarding his problems with hearing acuity. Unfortunately, rather than addressing the questions posed in the Board's May 2013 Remand, the examiner simply stated the following: "[t]he Veteran's February 2010 examination revealed unreliable pure tone and speech discrimination scores for both ears, therefore, the Veteran's hearing status at his February 2010 [examination] was unknown. Based on the unknown status of the Veteran's hearing at his February 2010 examination, an opinion regarding right ear hearing loss cannot be provided at this time." Thus, a review of the May 2013 VA addendum opinion shows that the examiner determined that he was unable to provide a medical nexus opinion based upon the unreliable audiogram results ascertained in the February 2010 VA examination. Crucially, none of the questions raised by the May 2013 Board Remand, pursuant to the July 2012 Memorandum decision of the Court, have yet been addressed by a VA examiner. Accordingly, this matter should be remanded in order to afford the Veteran a new VA audiological examination with medical opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the etiology of his currently diagnosed right ear hearing loss. The claims file, including a copy of this Remand, should be made available to and reviewed by the examiner. All necessary studies, including audiological testing, should be performed. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should obtain a complete history of the Veteran's audiological complaints. The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the currently diagnosed right ear hearing loss had its onset in service or is otherwise related to the Veteran's military service, to include the conceded in-service acoustic trauma. The significance of the shifts in hearing acuity shown on testing in service and post service must be addressed and an opinion should be given as to whether those shifts in hearing acuity (even if not meeting the VA criteria for hearing loss) represent more than the expected progression of hearing changes. The examiner should also address the Veteran's lay testimony regarding his problems with hearing acuity shortly after service. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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 or by the Court 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). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).