Citation Nr: 1330686 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-00 947 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas 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 D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1981 to July 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the St. Paul, Minnesota RO. The Veteran's claims file is now in the jurisdiction of the Little Rock, Arkansas RO. He had requested a formal Decision Review Officer hearing at the RO; he withdrew such request in November 2009. In August 2012 and June 2013, the Board remanded the matter for additional evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Board has reviewed the newly expanded Veteran's claims file as well as Virtual VA. On review of the record, the Board finds that the matter of service connection for bilateral hearing loss must once again be remanded for evidentiary development. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the August 2012 and June 2013 remands, the Board noted the Veteran's contention that his hearing acuity was damaged by his service as an infantryman, with exposure to machine guns, grenades, weapons, explosions, and tanks; he stated that he did not wear hearing protection all the time during field exercises, but did wear earplugs on the firing range. His exposure to noise trauma in service was conceded, as his service personnel records confirm that he served as an infantryman. The Board noted that audiometry on November 26, 2008 VA audiological examination did not show a hearing loss disability by VA standards (as defined in 38 C.F.R. § 3.385), and service connection was denied essentially on the basis that the claimed disability was not shown. The Board further noted that on audiological evaluation on November 7, 2008, just 19 days prior to the VA examination, speech recognition scores were 92 percent in the right ear and 88 percent in the left ear, reflecting a hearing loss disability in each ear (as defined in 38 C.F.R. § 3.385). The Board has now twice instructed on remand that the discrepancy in these two findings from November 2008 must be reconciled. Upon review of the claims file, this instruction still has not been fulfilled. The claims file was returned to the February 2013 VA examiner, who submitted a July 2013 addendum opinion. Once more this examiner did not cite to either November 2008 audiogram or offer any explanation or opinion whatsoever regarding the discrepancy between the two results; indeed, the July 2013 addendum opinion is nearly identical to the opinion statement offered in the February 2013 examination report. Virtual VA also includes no records pertinent to the remand instruction regarding the conflicting audiological reports. The Veteran is entitled to compliance with the Board's explicitly stated instructions. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims file to the VA audiologist who conducted the February 2013 examination of the Veteran (and submitted the July 2013 addendum opinion) to reconcile the conflicting November 2008 reports noted above regarding whether or not the Veteran has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so its likely etiology (specifically whether it is related to his service). The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination/interview of the Veteran, the examiner must offer opinions that respond to the following: (a) Does the Veteran have a hearing loss disability as defined in 38 C.F.R. § 3.385. The explanation of rationale for the opinion should (to the extent possible) reconcile the conflicting findings in that regard made on November 7, and November 26, 2008 VA examinations. (b) If a hearing loss disability is found, the examiner should further opine whether such disability is at least as likely as not (a 50 % or better probability) related to the Veteran's acknowledged exposure to noise trauma in service (in his MOS as an infantryman). The examiner must explain the rationale for the opinion in detail; if the opinion is to the effect that the hearing loss is unrelated to service, the explanation should identify other (considered more likely) possible etiologies for the hearing loss. 2. The RO should ensure that all the development sought is completed, and then review the record and readjudicate the claim of service connection for bilateral hearing loss. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ George R. Senyk 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) (2013).