Citation Nr: 1328451 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-01 165 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to November 1954, and from October 1952 to October 1953. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision in which the RO denied service connection for tinnitus and bilateral hearing loss. In July 2010, the Veteran filed a notice of disagreement (NOD) as to the aforementioned claims. A statement of the case (SOC) was issued in January 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month in January 2011. In November 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Also, during the Board hearing, the undersigned agreed to advance this appeal on the Board's docket, pursuant to § 7101(a)(2)(C) (West 2002) and § 20.900(c) (2012). In February 2013, the Board granted service connection for tinnitus; the award as implemented in a rating decision issued later that same month. Also in February 2013, the Board remanded the Veteran's bilateral hearing loss claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further development, the RO/AMC continued to deny the hearing loss claim (as reflected in an August 2012 supplemental SOC (SSOC)) and returned the remaining matter on appeal to the Board for further consideration. Unfortunately, for reasons discussed below, the claim on appeal is, again, being remanded to the RO via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND The Veteran has asserted that service connection is warranted for bilateral hearing loss because his current hearing impairment was incurred as a result of his in- service noise exposure. The Veteran has specifically reported being exposed to significant noise as an airplane and helicopter pilot during World War II and the Korean War and that he did not use proper hearing protection during that time. See statements from the Veteran dated August 2009; July 2010; and January 2011. In February 2013, the Board remanded the Veteran's hearing loss claim for additional evidentiary development, to specifically include obtaining a medical opinion that addressed whether the Veteran's current hearing impairment is likely related to his military service. In this regard, while the evidentiary record contained a negative medical nexus opinion at that time (as provided in the February 2010 Addendum to the November 2009 VA examination), the Board deemed the November 2009 VA opinion inadequate because the opinion was based upon an inaccurate factual basis. Indeed, the Board noted that, in opining that the Veteran's bilateral hearing loss is less likely as not related to his military noise exposure, the November 2009 VA examiner noted, inter alia, that the Veteran first noticed hearing loss in 1985. However, the Board further noted that the Veteran asserted that the November 2009 VA examination was not adequate because the information the examiner had was not consistent with his history, as he testified that his hearing loss began in the 1950s after he flew helicopters, although he did not seek treatment for his hearing loss until 1985. As such, the Board directed the RO, via the AMC, to schedule the Veteran a VA examination to obtain a medical opinion regarding whether the current hearing loss is likely related to his military service, with consideration of his documented medical history and the credible assertions of in-service noise exposure. On remand, the RO, via the AMC, scheduled the Veteran for a VA audio examination where his diagnosis of bilateral sensorineural hearing loss was continued. See April 2013 VA examination report. The April 2013 VA examiner opined that the Veteran's current bilateral hearing loss is less likely as not related to his military service; however, review of the examination report reveals that the rationale provided is an exact duplicate of the rationale provided in the November 2009 opinion, i.e., that the Veteran first noticed hearing loss in 1985, with no indication that the April 2013 VA examiner considered the Veteran's competent and credible lay evidence of hearing loss which began in the 1950s after he flew helicopters. Because the April 2013 VA examiner did not consider the competent and credible lay evidence of hearing loss during the 1950s, the April 2013 VA opinion is deemed inadequate. As a result, the directives in the February 2013 Remand have not been substantially complied with, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (compliance by the Board or the RO with remand instructions is neither optional nor discretionary). Accordingly, on remand, the RO, via the AMC, should arrange for the Veteran to undergo VA examination, by an Ear, Nose, and Throat (ENT) physician, or an audiologist (preferably, one who has not previously evaluated the Veteran), at a VA medical facility to obtain a competent opinion as to whether his current bilateral hearing disability is related to his military service. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of his claim for service connection. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one- year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted prior to adjudicating the claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The letter should clearly explain to the Veteran that he has a full one- year period to respond (although VA may decide the claim within the one- year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA examination, by an ENT physician, or an audiologist (preferably, one who has not previously evaluated the Veteran), at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions-to include his credible assertions of in- service noise exposure. Based on the testing results of record, the VA examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's current bilateral hearing loss disability is the result of injury or disease incurred or aggravated in service, to particularly include in- service noise exposure, as alleged. In rendering the requested opinion, the examiner should consider the competent evidence of in-service noise exposure, as well as the competent lay and medical evidence of hearing problems during the 1950s after the Veteran flew helicopters. The examiner should set forth complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).