Citation Nr: 1333056 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-31 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978. He appealed to the Board of Veterans' Appeals (Board/BVA) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied his claims of entitlement to service connection for bilateral (left and right ear) hearing loss and tinnitus, as well as for hypertension. With respect to the denials of service connection for bilateral hearing loss and tinnitus, he appealed the Board's June 2011 decision also denying these claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a December 2012 Memorandum Decision, the Court vacated the Board's decision denying these claims and remanded them to the Board further development and readjudication in compliance with directives specified. To comply with the Court's Memorandum decision, the Board in turn is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the prior June 2011 decision, the Board denied these claims of entitlement to service connection for bilateral hearing loss and tinnitus, in part, based on the results of a January 2009 VA compensation examination the Court has determined was inadequate. The Board therefore has to obtain supplemental medical comment concerning these claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Indeed, because the only VA examination of record, and in fact the only medical opinion in the file addressing the determinative issue of the etiology of these conditions, is inadequate, another VA audiologic examination and opinion are needed. The examiner must provide the required comment on the cause of the Veteran's current bilateral hearing loss and tinnitus - and especially insofar as their alleged relationship with the Veteran's military service. In commenting, unlike previously, the examiner cannot rely solely on a lack of evidence of hearing loss in service because the Court has held that 38 C.F.R. § 3.385 (the VA regulation defining what constitutes a ratable hearing loss disability for VA compensation purposes) does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at time of separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing loss disability by submitting competent evidence that the current disability is causally related to his service. Id., at 160. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Schedule another VA audiologic examination for another medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's current hearing loss and tinnitus are related or attributable to his military service - and particularly to noise exposure in his military occupational specialty (MOS) as an Infantryman with an M-16 Rifle Expert Badge and Hand Grenade Expert Badge. The examiner must review the claims file, including a complete copy of this remand and the Court's Memorandum Decision, for the pertinent history. A history must be elicited from the Veteran, as well, including as concerning what occurred during his service. The examination report must include a discussion of the underlying medical rationale for all opinions expressed and conclusions reached, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file. In particular, if the examiner, like the prior January 2009 examiner, concludes or indicates in effect that there is no such thing as delayed-onset hearing loss, so that hearing loss should have been objectively evident much earlier than when it was actually shown in this instance, certainly more contemporaneous to the alleged trauma in service, such as during the Veteran's separation examination, then there needs to be more explanation of why there is this expectation and why it is reasonable under the circumstances. Merely conclusively saying there is this expectation, without any explanation, is insufficient. So perhaps some citation to supporting medical authority would be warranted. 2. Then readjudicate these claims for hearing loss and tinnitus in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative another supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KEITH W. ALLEN 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).