Citation Nr: 1327055 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-12 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the residuals of an ear injury. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1977 to November 1980. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in part, granted service connection for a left ear hearing loss disability and assigned a noncompensable evaluation, and denied service connection for a right ear hearing loss disability and ear injury. In November 2010, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In a June 2011 Board decision, the Veteran was granted service connection for right ear hearing loss, and the issues of an increased initial rating for left ear hearing loss, and an ear injury, were remanded for further development. As the Veteran is now service connected in both ears, the Board finds the issue would be more properly characterized as entitlement to an increased initial evaluation for bilateral hearing loss, and thus the remaining issues in appellate status are as noted above. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). 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 Regretfully, the Board finds that an additional remand is warranted in this case. Specifically, based on the Veteran's reports of having "ruptured" his ear in service, the issue of service connection for an ear injury was remanded for a comprehensive VA examination to identify all current ear injuries, and provide an opinion as to whether any such disability was related to the Veteran's ears rupturing during service. The Veteran had an apparent VA fee basis examination in June 2011, which did find that otoscopy revealed a clear view of the tympanic membrane bilaterally, but it does not appear that the audiologist conducted more than a cursory examination of the Veteran's ears, and the examination report does not indicate whether the Veteran has any current ear injury, or residuals of any in service injury. A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As the Board finds that this examination is inadequate as it does not show a thorough examination of the Veteran's ears nor does it contain a discussion of whether the Veteran has any residuals of a prior ear injury, including his reported ruptured ears in service, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions pertaining to a thorough VA examination. Further, while the prior VA examination did contain some audiometric readings pertaining to the Veteran's bilateral hearing loss, as this claim is being remanded for a more thorough examination, which should also include audiometric testing relevant to this issue of an increased evaluation for the Veteran's hearing loss, the Board finds that the issue of bilateral hearing loss should also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a physician familiar with ear disorders, (preferably an otolaryngist or ear, nose, throat (ENT) specialist if available) to determine the onset and etiology of the residuals of any ear injury. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. a) The examiner should identify all ear disabilities that are currently manifested or that have been manifested at any time since May 2008. b) For each ear disability, or residual thereof, identified, the examiner should provide an opinion as to whether there is a 50 percent probability or greater that any such disability is related to the Veteran's active service, to include as a result of his ears rupturing during service. c) If the veteran has no apparent ear injuries, or residuals of prior ear injuries, the examiner should specifically annotate lack of such in the examination report. Any opinion provided must include an explanation of the basis for the opinion. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed. 2. Notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. Then, after ensuring any other necessary development has been completed, the RO should readjudicate the Veteran's claims of service connection for residuals of an ear injury and entitlement to an increased rating for a bilateral hearing loss disability. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ DAVID L. WIGHT 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).