Citation Nr: 1335452 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-27 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Although the RO certified the Veteran's appeal for service connection for a fibroid condition and hearing loss of the right ear, the Veteran specifically indicated in her September 2011 substantive appeal that she is only seeking service connection for hearing loss. Furthermore, the Veteran's representative only addressed the issue of service connection for right ear hearing loss in an August 2012 Informal Hearing Presentation. Therefore, the Veteran's claim for service connection for a fibroid condition is considered withdrawn and not on appeal. The Board is aware of the holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), that an issue can be on appeal if VA has treated it as on appeal and the appellant might have reason to believe it was on appeal. In this case, there is no risk of confusion or misunderstanding by the appellant. Her substantive appeal specifically limited her appeal to only the issue of service connection for right ear hearing loss and her representative presented argument on only that issue. 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 she currently has hearing loss in the right ear caused by exposure to loud noise during service. Specifically, she claims that although her military occupation specialty (MOS) was personnel administration specialist, she served in two aviation units, including one right on the airfield. She also believes that her right ear hearing loss may be related to the noise exposure from weapons qualification. While there is no medical evidence of record reflecting a current right ear hearing loss disability, as reflected in her lay statements, the Veteran asserts that she currently has diminished hearing in the right ear, which she has had since her period of service. While the Veteran is not competent to diagnose a hearing loss disability for VA purposes, she is competent to report matters within her own personal knowledge, including exposure to loud noise and diminished hearing in her ear. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology). Given the Veteran's testimony regarding her hearing loss problem, and the lack of any current audiological findings or opinion regarding the relationship between hearing loss and service, the Veteran should be provided an examination and opinion addressing whether she has a current hearing loss disability in right ear for VA purposes, and, if so, whether such disability is related to her nearly 14 years of service in the Air Force from September 1980 to March 1994. See 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any right ear hearing loss. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has a right ear hearing loss disability. If a right ear hearing loss disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability is related to service, to include any in-service noise exposure as reported by the Veteran. The examiner is advised that the Veteran should be considered competent to report her noise exposure in service. Any negative opinion should not rely solely on the absence of hearing loss in service as the basis for an opinion. The question is whether the Veteran's current hearing loss is related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993). A complete rationale for all opinions must be provided. 2. Notify the Veteran that she must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and her representative have had an adequate 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).