Citation Nr: 1325675 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-03 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Charles D. Romo, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to January 1968 and from May 1973 to March 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement (NOD) was received in April 2009. A statement of the case (SOC) was issued in January 2010 and a substantive appeal was received in January 2010. The issue of entitlement to service connection for residuals of a left eye injury and a claim to reopen the issue of entitlement to service connection for a pulmonary disorder were raised by the Veteran's representative at the October 2012 travel board hearing. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran is claiming entitlement to service connection for bilateral hearing loss and tinnitus. He asserts these disabilities were the result of in-service noise exposure as a hull technician. When the Veteran was afforded a VA audiological examination in March 2009, the VA examiner rendered an opinion that his hearing loss and tinnitus were not related to service. The rationale for this opinion was that hazardous noise exposure has an immediate effect on hearing, and does not have a delayed onset, nor is it progressive or cumulative. Here the examiner found that because the Veteran did not report hearing loss and tinnitus until decades after separation, it was less likely than not that hearing loss and tinnitus were related to noise exposure in service. The examiner provided a number of potential non-military etiologies, including aging, high blood pressure, occupational and recreational noise exposure, and the usage of potentially ototoxic medication. In reviewing the reports of inservice audiological examinations, it appears that there may have been some threshold shifts (even after converting the results of the March 1965 entrance examination to ANSI). Moreover, on January 1975 examination, it was noted that the Veteran was diagnosed with high frequency hearing loss at the 6000 hertz level. The disability was noted as "NCD" - not currently disabling. It does not appear that the significance of any threshold shifts and the January 1975 examination findings were clearly addressed by the VA examiner. Additionally, in November 2011, the Veteran filed a claim seeking entitlement to service connection for diabetes, ischemic heart disease, and diabetic neuropathy of the right and left lower extremities. In April 2012, the RO denied the claims. In June 2012 a NOD was received. It does not appear that a SOC has been issued addressing these claims. The United States Court of Appeals for Veterans Claims (Court) has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the RO to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. The RO should issue a SOC addressing the matters of entitlement to service connection for diabetes, ischemic heart disease, and diabetic neuropathy of the right and left lower extremities. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect his appeal of these issues to the Board. If a timely substantive appeal is received, then the case should be returned to the Board for appellate review. 2. The Veteran should be afforded another VA audiological examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any current hearing loss and/or tinnitus is/are causally related to the Veteran's active duty service, to include noise exposure during service. For purposes of the opinion, noise exposure during service should be assumed. The examiner should offer a rationale which should discuss the significance of any decrease in hearing acuity documented in service audiological examinations and the significance of the January 1975 diagnosis of high frequency hearing loss at the 6000 Hertz level. 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 on appeal. 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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).