Citation Nr: 1322791 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-23 635 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for the service-connected cold injury residuals of the left hand. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to November 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO. In a November 2006 rating decision, the RO in St. Louis, Missouri continued a 20 percent evaluation for the service-connected cold injury residuals of the left hand. In an October 2009, the RO in Chicago, Illinois increased this evaluation to 30 percent. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an April 2010 rating decision, the RO denied the claims of service connection for bilateral hearing loss and tinnitus. The jurisdiction over the Veteran's claims now lies with the RO in Chicago, Illinois. The Board remanded the case in February 2011 for additional development. The claim for increase is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The currently demonstrated bilateral sensorineural hearing loss and tinnitus are shown as likely as not to be due to the Veteran's documented exposure hazardous noise levels that began incident to his duties as an artillery crewman during service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral sensorineural hearing loss and tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A.§§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. In the February 2011 remand, the Board recognized threshold shifts between the Veteran's August 1969 enlistment and October 1971 separation examinations. The Board requested that AMC obtain an addendum opinion to the April 2010 VA examination specifically addressing "the significance, if any, of the threshold shifts in each frequency (i.e. 500, 1000, 2000 and 4000 Hz) demonstrated by the pre-induction and separation audiograms." In a March 2011 addendum opinion, the examiner found that, given the evidence of pre-existing high frequency hearing loss in the left ear at enlistment, and given that hearing loss at the same 4000 Hz threshold was not significantly worse at separation, the Veteran's hearing loss was not related to noise exposure during military service. While the addendum opinion specifically discussed the lack of significant change at the 4000 Hz levels, the examiner did not discuss if any difference at the other frequencies ( i.e. 500, 1000, and 2000 Hz). Significantly, the hearing testing done at the time of the Veteran's separation from service shows elevated thresholds at other frequencies in both ears, as well as some increase in the threshold at 4000 Hz in the left ear. Given these recorded facts, the Board finds that the VA medical response in this case is of limited probative value for the purpose of deciding these appeals. Moreover, to the extent that the Veteran is shown to have had rather extensive harmful noise exposure during his period of service, the Board finds the evidence to be in relative equipoise in showing that current bilateral sensorineural hearing loss disability as likely as not is due to a pattern of hazardous noise exposure that began with his period of active service. In addition, the Board finds that the Veteran has credibly asserted experiencing tinnitus while he was serving on active duty. To the extent that this would be consistent with the Veteran's documented service with an artillery unit, the Board also finds the evidence to be in a relative equipoise in showing that the Veteran's current tinnitus as likely as not had its onset during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for the bilateral sensorineural hearing loss and tinnitus is warranted. ORDER Service connection for a bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. REMAND The Board notes that AMC obtained the missing VA treatment records as identified in the February 2011 remand. However, AMC failed to consider the Veteran's claim for an increased rating for the service-connected cold injury residuals of the left hand in light of those additional VA treatment records by issuing a Supplemental Statement of the Case (SSOC) for that issue. Additionally, there is a memorandum directed to the Director of Compensation and Pension which indicates the AMC considered whether extraschedular evaluation is warranted for the service-connected cold injury residuals of the left hand, but it is unclear from the record whether there was a response to this document or whether the Veteran was ever informed of this development. As a Supplemental Statement of the Case has not been issued to address this mater, the Board finds that there has not been substantial compliance with the February 2011 remand directives. Under these circumstances, the Board remains under a duty to insure that its prior remand directives are now performed by remanding this matter so that the RO may make renewed efforts comply with the directives in the Board's February 2011 remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Accordingly, this remaining matter is REMANDED for the following action: 1. With respect to the claim for an increased rating for the service-connected cold injury residuals of the left hand, the RO should clarify for the record whether this matter on appeal was ever referred for extraschedular consideration. If so, the response to the request should be addressed in full. 2. After completing all indicated development, the RO should readjudicate the claim for increase in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs