Citation Nr: 1326934 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-22 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a right eardrum disability, to include as secondary to noise exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1959 to August 1961. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The case is currently under the jurisdiction of the VA RO in Louisville, Kentucky. The case was remanded by the Board in October 2009 and the issues were denied by the Board in a July 2011 decision. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a September 2011 memorandum decision of the Court. The Court vacated the Board's July 2011 decision and remanded the matters to the Board, essentially determining that the medical opinions in the record were inadequate for rating purposes. 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 on his part. The issues of service connection for residuals of a neck injury and entitlement to special monthly compensation based on the need for the aid and attendance of another person have been raised by the record, but 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. REMAND The Veteran is claiming service connection for a right eardrum disability, including as secondary to in-service noise exposure, and hearing loss in the right ear. He contends that he was exposed to the acoustic trauma of artillery and gunfire. After considering that the Veteran's military occupational specialty was in field artillery, acoustic trauma during service is conceded. As pointed out by the Court, there are several opinions in the record, some in support and some that do not support a relationship between the Veteran's service and his right eardrum disability and hearing loss. The Court pointed out several inconsistencies in the various opinions relied upon by the Board in its July 2011 decision. Among these are statements that the Veteran's right eardrum disability may have preexisted active duty, inconsistencies in the facts upon which the examiners relied, such as whether the separation examination utilized whispered voice or audiometric testing for determining the Veteran's hearing acuity, and a lack of complete rationale to support the opinions. In addition, in a May 2012 statement, the Veteran reported that he had undergone an audiometric evaluation earlier in the month at the Lexington, Kentucky VA Medical Center (VAMC). The results of this evaluation must be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the VAMC and request copies, for association with the claims folder, of any and all records of treatment that the Veteran received at that facility since 2010. 2. The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of any right eardrum disability and right ear hearing loss. The examiner should be requested to render opinions regarding the following: (a) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that a right eardrum disability pre-existed the Veteran's active service. (b) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing right eardrum disability was not permanently worsened during the Veteran's service, and that any increase in disability was due to the natural progress of the disease. (c) If the answer to (a) or (b) is no, whether it is at least as likely as not (50 percent or greater probability) that any current right eardrum disability had its clinical onset during the Veteran's service or is otherwise related to any in-service disease, event, or injury. (d) Whether it is at least as likely as not (probability 50 percent or more) that the Veteran's right ear hearing loss is related to service, primarily to acoustic trauma of artillery fire during service. NOTES to examiner: Acoustic trauma during service (due to artillery and gunfire) is conceded. The Veteran's July 1961 separation physical examination utilized audiometric examination. The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached and, to the extent possible, reconcile his/her opinions with those of the previous VA examiners. The examiner should specifically state whether he/she agrees with the opinions of the previous VA examiners and the reason(s) why. 3. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ BARBARA B. COPELAND 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).