Citation Nr: 1326844	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-26 777	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Riley, Counsel 





INTRODUCTION

The Veteran served on active duty from February 1971 to March 1972.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The Board finds that additional development is necessary before a decision may be rendered in this case.  The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as the disabilities were incurred due to noise exposure during active duty service.  He has also reported incurring acoustic trauma during service due to his exposure and use of various artillery weapons.  Personnel records indicate the Veteran may have incurred noise exposure during service; his DD-214 shows that he served as a cook with an Army artillery unit with service in the Republic of Vietnam.  The Veteran's unit was issued an Army commendation medal in March 1972 based on participation in military operations in Vietnam against a hostile force.  

The Veteran was provided a VA audiological examination in December 2011.  The VA examiner provided medical opinions against the claims based on the finding of normal hearing at the March 1972 separation examination.  A medical opinion which relies solely on the absence of hearing loss (as defined by VA regulation) at separation as a basis for a negative nexus opinion is inadequate on its face.  Hensley  v. Brown, 5 Vet. App. 155   (1993).   A new VA medical opinion is therefore required by VA's duty to assist the Veteran in developing evidence to substantiate his claims. 

Accordingly, the case is REMANDED for the following action:
1.  Provide the claims file to a VA examiner with the appropriate expertise to render a medical opinion in this case.  The claims file must be reviewed prior to the issuance of the requested medical opinion.

After review of the entire record, including the Veteran's statements regarding noise exposure during service, the examiner should determine whether it is 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 and tinnitus are related to any incident of active duty service, to include the Veteran's service in Vietnam with an artillery unit.

A full rationale (i.e. basis) for all expressed opinions must be provided.  The rationale must consist of more than the Veteran's normal hearing at separation from active service in March 1972.

4.  Readjudicate the claims on appeal.  If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order.

The appellant 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).



_________________________________________________
MILO H. HAWLEY
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).