Citation Nr: 1326450 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-13 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from November 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran requested a hearing before the Board; however, he withdrew his request for a hearing in September 2011. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See July 2010 VA examination. 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 The Veteran seeks entitlement to service connection for bilateral hearing loss. He asserts his hearing was damaged during basic training when a land mine bomb detonated next to him. He states he has experienced hearing loss since that time and continues to suffer from hearing problems. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was afforded a VA examination in July 2010 and was diagnosed with bilateral sensorineural hearing loss. The examiner opined that based on the absence of appropriate active duty test data, providing an opinion would require resorting to mere speculation. The Board finds this opinion to be inadequate and a remand is necessary to obtain an addendum opinion. The absence of documented hearing loss in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of the disorder, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). The VA may not simply disregard lay evidence because it is unaccompanied by medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all relevant updated treatment records. 2. Return the claims file and a copy of this Remand to the VA examiner who conducted the July 2010 audiological examination. If the July 2010 examiner is not available or cannot offer the requested opinions without examining the Veteran, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology of his bilateral hearing loss, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's hearing loss had its onset during service or is in any other way causally related to his active service, to include the Veteran's account of a land mine bomb detonating next to him. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO should then readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). _________________________________________________ WAYNE M. BRAEUER 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).