Citation Nr: 1326333 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 08-14 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from October 1973 to September 1979 and again from September 1979 to June 1988. While the Veteran received an honorable discharge from his first period of service, the discharge for his second period of service was under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2011, the Board reopened the Veteran's claim of entitlement to service connection for bilateral hearing loss and remanded it for further development. It has been returned to the Board for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU) was raised by the Veteran's representative in a July 2013 Informal Hearing Presentation, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its May 2011 remand, the Board requested that the RO obtain the Veteran's missing service treatment records, particularly enlistment or separation examinations from both periods of service and service treatment records from the Veteran's first period of service from October 1973 to September 1979. The Board also requested a VA audiological examination and opinion to determine whether the Veteran's current bilateral hearing loss was incurred during his first period of military service. Additional service treatment records, including the Veteran's July 1973 entrance examination report, were obtained. The July 1973 report contains an audiogram reflecting that pure tone threshold in the left ear, in decibels, was 65 at 4000 Hertz, and therefore that the Veteran had a left ear hearing loss disability for VA purposes prior to service. See 38 C.F.R. § 3.385. It was noted at that time that the Veteran had mild hearing loss in the right ear, and severe high frequency hearing loss in the left ear. The Veteran was afforded a VA audiological examination in November 2011, and in a November 2011 addendum opinion the VA examiner, after reviewing the claims file, stated that the Veteran was shown to have had severe high frequency loss in July 1973 on the right and moderately severe high frequency loss on the left, but that a September 16, 1987, audiogram showed that hearing on the right had improved to moderate, with no significant change since 1973 found on the left. The examiner opined that the Veteran's hearing loss did not occur during, and was not caused by, service, in part on the basis that the Veteran's 1973 hearing improved significantly on the right by the time of his 1987 audiogram. However, the examiner described the Veteran's right ear hearing as being worse on July 1973 entrance examination, when the audiogram and notations below the audiogram clearly indicate that the left ear had more severe hearing loss. Also, the September 16, 1987, audiogram reflects worsened, rather than improved, hearing in both the left and right ears: pure tone threshold in the right ear, in decibels, was 45 at 4000 Hertz, and pure tone threshold in the left ear, in decibels, was 75 at 4000 Hertz. In light of the above, the claims file should be forwarded to the November 2011 VA audiology examiner for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the VA examiner who conducted the November 2011 examination, and ask that an addendum opinion be provided regarding the etiology of any hearing loss. Following a review of the claims file, to include service and post-service medical records, and the November 2011 examination results, the examiner is requested to answer the following questions: A) Is it at least as likely as not (i.e. a 50 percent probability or more) that any current hearing loss is related to the Veteran's service from October 1973 to September 1979 only, to specifically include in-service noise exposure? B) Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's left ear hearing loss underwent an increase in severity during such service from October 1973 to September 1979 beyond that due to only the natural progress of such hearing loss? C) If the answer to question B is yes, is there clear and unmistakable evidence (obvious or manifest) that, despite such increase in left ear hearing loss severity, left ear hearing loss was not aggravated (permanently increased in severity beyond natural progression) by service? Please note that only the Veteran's period of service from October 1973 to September 1979 should be considered the Veteran's service for the purpose of the above questions. However, in making these determinations, the examiner should discuss the audiological evaluation results and see the above discussion concerning the tests done in July 1973 and September 1987. A complete rationale for all opinions must be provided. If the November 2011 VA examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested information. If the requested opinions cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner to provide the requested opinions and information. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).