Citation Nr: 1336491 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-02 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable rating for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied a compensable rating for right ear hearing loss and denied service connection for left ear hearing loss. The Veteran testified before the undersigned Veterans Law Judge at a January 2012 videoconference hearing. A copy of the hearing transcript has been associated with the claims file. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 With respect to the left ear, the Veteran's claim for service connection hearing loss was denied in the August 2009 rating decision in part because the evidence did not reflect a current left ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. VA treatment records from March 2012 reflect audiometric findings which satisfy the VA criteria for current left ear hearing loss. However, the record does not contain an opinion as to whether this condition is etiologically related to service. Therefore, such an opinion must be obtained on remand. At his January 2012 hearing, the Veteran asserted that his hearing loss had worsened since his last examination in January 2009. The March 2012 records noted above also include audiometric findings which show higher puretone thresholds for the Veteran's service-connected right ear when compared to the January 2009 examination. In light of this finding and the Veteran's statements, he should be provided with a new VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Finally, the Board notes that the rating criteria for hearing loss are highly dependent on whether one or both ears are service-connected. See 38 C.F.R. § 4.85. Because the rating assigned for service-connected right ear hearing loss is predicated on adjudication of the issue of service connection for left ear hearing loss, the two issues are inextricably intertwined and cannot be separately adjudicated at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As the claim is being remanded, the RO/AMC should obtain any VA treatment records not currently associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records generated since August 14, 2012 and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA audiometric examination. The claims file must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner should comment on the severity of the Veteran's service-connected hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include hazardous noise exposure. In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma, including field artillery, in service. A clear rationale for all opinions should be provided. 3. Review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ P. M. DILORENZO 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).