Citation Nr: 1336197 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-03 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in which the RO reopened a previously denied service connection claim for bilateral hearing loss, and ultimately denied the claim on the merits. In March 2011, the Veteran revoked a previously appointed private attorney as his representative, and has not indicated a desire to appoint another representative. As such, the Board finds that he chooses to proceed unrepresented in this matter. The Veteran and his spouse testified before the undersigned Veterans Law Judge sitting at the RO in October 2011. A copy of the hearing transcript is of record and has been reviewed. This case was before the Board in June 2012, at which time the Board found that new and material evidence had been submitted to reopen the service connection claim for hearing loss, but remanded the claim for additional development. Unfortunately, for the reasons described below, the claim must be remanded again. 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 In the June 2012 remand, the Board indicated that if any further evidence was added to the claims file during the course of the remand, a supplemental opinion was to be provided regarding the etiology of the Veteran's hearing loss disability. In May 2013 the Veteran submitted a buddy statement from an individual who reportedly served at the same time of the Veteran and noticed that the Veteran's hearing worsened from the time of entry into service until the time of separation. This evidence is competent and relevant to the issue on appeal, specifically, whether the Veteran's pre-existing hearing loss was aggravated during his military service. A supplemental opinion was not provided. This must be remedied on remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who performed the October 2008 VA examination and opinion addressing the Veteran's hearing loss. If this examiner is no longer available to complete an addendum to his opinion, the Veteran should be scheduled for a new VA examination by an audiologist to ascertain the origins or etiology of his hearing loss. The claims folder is to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folder. After a review of the claims folder and an examination of the Veteran (if the previous examiner is unavailable), the examiner should determine: Whether the Veteran's preexisting hearing loss increased in severity in service, and if so, whether there is clear and unmistakable evidence (obvious or manifest) that any such increase in service was due to the natural progression of the disability. In addressing these matters please address the following: (a) the Veteran's exposure to acoustic trauma during his service as an Infantryman, and (b) the buddy statement submitted by a fellow service member, W.D. Jr. in May 2013, noting that he served with the Veteran and noticed that the Veteran's hearing abilities had decreased from entrance into service to discharge from service. The rationale for all opinions expressed in the examination above should be provided. If the examiner is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 2. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). (Continued on the next page) 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. 2013). _________________________________________________ S. L. Kennedy 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).