Citation Nr: 1328301 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-07 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from May 1966 to April 1970. The matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The issue has been recharacterized to better reflect the evidence of record and allegations of the Veteran. In July 2009, the Veteran raised a claim of service connection for of prostate cancer and in March 2011, he has, in essence, requested to reopen his claim of service connection for tinnitus. These issues 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. 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 Veteran contends that his hearing loss is due to in- service noise exposure. The Board finds that further development is necessary. The Veteran was afforded a VA examination in June 2009. The Board finds that the opinion is inadequate and requires further clarification. First, the examiner noted that at the time of enlistment the Veteran had moderately severe hearing loss at 4000 Hertz (Hz) in the right ear. The examiner also noted that reports of difficulty with hearing were documented at the time of enlistment. However, the examiner failed to address the question of aggravation with respect to the right ear. Additionally, the examiner noted that at the time of separation, the Veteran's hearing was within normal limits across all frequencies. However, the examiner provided no comment on the significance of the in-service auditory shifts when comparing his service entrance examination to the findings on his service discharge examination. In particular, the examiner did not address whether the in- service threshold shift may reasonably be considered the onset of any current hearing loss. Under these circumstances, the Board finds that another medical opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and dates of treatment of all outstanding medical care providers, both VA and private, who have treated him for his hearing loss since service. Secure any necessary authorizations. If any requested records cannot be obtained, the Veteran and his representative should be notified of such. 2. The Veteran should be afforded an appropriate VA examination to determine the etiology of his right ear hearing loss disability and his left ear hearing loss disability. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Any necessary testing should be accomplished. a). With respect to right ear hearing loss, the examiner must opine as to whether the right ear hearing loss was aggravated by service. The examiner should state whether there was an increase in right ear hearing loss during service, and if so, whether there is clear and unmistakable evidence that such increase was due to the natural progress of the condition. b). With respect to left ear hearing loss, the examiner should clarify whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's current left ear hearing loss is related to service, including to any in-service acoustic trauma. A complete rationale is required for all opinions rendered. The examiner must discuss the clinical significance (if any) of the shifts in puretone thresholds when comparing the Veteran's May 1966 service entrance examination audio findings and his November 1969 service discharge examination audio findings. The examiner should also discuss the Veteran's complete noise history. The examiner should be told that the fact that the Veteran may not have met VA standard for hearing loss in service cannot be determinative without providing a complete rationale as to why. The rationale must be based on sound medical principles, the Veteran's history and any other relevant evidence provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. 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). _________________________________________________ K. OSBORNE 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).