Citation Nr: 1326850 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-11 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama 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 R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. He is a Vietnam veteran who earned the Combat Action Ribbon (CAR). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for bilateral hearing loss. In September 2010, the RO denied service connection for hypertension and decreased the rating for the Veteran's service-connected left disability from 20 to 10 percent. The Veteran filed a timely notice of disagreement with respect to both claims, but did not perfect the appeal after issuance of the June 2012 statement of the case. Therefore, these issues are not in appellate status. 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 Although the Board regrets the additional delay, further development is necessary prior to the disposition of the Veteran's bilateral hearing loss claim. The Veteran's receipt of the CAR supports his participation in combat, and in light of his combat service the Board concedes that he had noise exposure in service. The Veteran's February 1965 enlistment examination contains audiometry findings that, when converted, show bilateral hearing loss for VA purposes with readings of 40 decibels on the right and 50 decibels on the left, at 4000 Hz. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A March 1966 examination shows that the Veteran was given whispered and spoken voice tests and passed with 15/15. He denied having any ear trouble. A June 1969 separation examination also shows that the Veteran was given whispered and spoken voice tests and passed with 15/15. He again denied having any ear trouble. During a March 2009 VA examination, audiological testing revealed a normal sloping to moderate sensorineural hearing loss in the right ear, and a normal sloping to profound sensorineural hearing loss in the left ear. The examiner opined that the Veteran's bilateral hearing loss "is less likely as not" related to or caused by his military noise exposure. He reasoned that the Veteran's hearing was abnormal and considered "disabling" at the time of enlistment. No opinion was offered as to whether the Veteran's pre-existing hearing loss was aggravated by his service. In a February 2009 VA Form 21-4142, the Veteran stated that he applied for a position with the United States Capitol Police six months before his June 1969 discharge, but was "rejected for failing the hearing test." Thus, upon remand, the agency of original jurisdiction should contact the United States Capitol Police and request all available records, including physical examinations. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran authorize release of all available records, to include physical examinations, from the United States Capitol Police from December 1968 to June 1969. A copy of any negative response(s) should be included in the claims file. If any records sought are determined to be unavailable, the Veteran must be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Then, return the claims file to the VA examiner who conducted the March 2009 joints examination. The claims folder, to include a copy of this remand, must be reviewed in conjunction with the examination, and such review must be noted in any report. If the March 2009 examiner is not available or cannot offer the requested opinion without examining the Veteran, the Veteran should be scheduled for an appropriate VA examination. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion as to whether the Veteran's pre-existing bilateral hearing loss was aggravated (worsened beyond its natural progression) during service. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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). _________________________________________________ THOMAS J. DANNAHER 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).