Citation Nr: 1337375 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 03-17 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a compensable disability rating for service-connected left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1981 and from June 1987 to May 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction over the Veteran's appeal was subsequently transferred to the RO in Milwaukee, Wisconsin. The Veteran testified at a hearing before the Board in January 2006. A transcript of that hearing is of record. Previous remands of the Veteran's appeal were issued by the Board in March 2006, September 2009, November 2011, and December 2012. The Board additionally disposed of other service connection claims in many of these decisions. For the reasons described below, the issues on appeal are again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND When the Board remanded the Veteran's claims on appeal in December 2012, it instructed the Agency of Original Jurisdiction to obtain treatment records pertaining to a fee basis audiological evaluation, as referenced in a November 2009 VA audiology progress note. Although additional VA treatment notes were obtained referencing a fee basis consultation, it appears that the actual fee basis audiological evaluation report was not obtained. VA regulations provide that when records are in the custody of a Federal department or agency, as many requests as are necessary to obtain the relevant records shall be made, unless it can be concluded that the records do not exist or that further efforts to obtain the records would be futile. See 38 C.F.R. § 3.159(c)(2) (2013); see also Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand). As such, another remand is necessary in order to undertake the necessary attempts to obtain the fee basis audiological evaluation report. The Board additionally observes that the Veteran indicated in a statement received in February 2001, that he had undergone a hearing examination at the Denver VA Medical Center (VAMC) in January 2001. Although a December 2000 VA audiological consultation report is of record, there does not appear to be a January 2001 VA audiological examination report associated with the claim file. Thus, it is not clear whether there was a single examination in December 2000 or that another examination was conducted in January 2001. On remand, efforts should be made to ascertain whether such a January 2001 examination report exists. Additionally, a November 2002 mental health inpatient case manager admission note indicated that the Veteran had previously been denied benefits administered by the Social Security Administration (SSA), and that he should reapply. To date, however, a copy of the Veteran's SSA records has not been associated with the claims file. As such, remand is also necessary to obtain the Veteran's SSA records. See 38 C.F.R. § 3.159(c)(2) (2013); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, the Board notes that although an etiology opinion regarding the Veteran's right ear hearing loss was obtained in a December 2008 addendum to the September 2007 VA audiological examination report, the examiner did not appear to consider whether the Veteran's right hearing loss could be related to his documented in-service hazardous noise exposure on a delayed/latent onset basis. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (noting that when a veteran is not shown to meet the regulatory requirements for establishing a "disability" for hearing loss at the time of separation from active service, service connection for a current hearing disability may be established by evidence that the current disability is causally related to service). Therefore, after all additional evidence is assembled, the Veteran should be afforded a new VA audiological examination to determine his current level of hearing impairment and to obtain a new opinion regarding the etiology of his right ear hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of all decisions and underlying documents considered in those decisions with regard to the Veteran's application(s) for SSA disability benefits. If requested records cannot be obtained, the Veteran must be notified of the attempts made and why further attempts would be futile. He must also be allowed the opportunity to provide such records, and be notified of any further actions that will be taken with regard to his claims, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. Obtain a copy of the Veteran's fee basis audiological examination report, as referenced in the November 2009 VA audiology note, and a report of any VA audiological examination conducted at the Denver VAMC in approximately January 2001. If requested records cannot be obtained, the Veteran must be notified of the attempts made and why further attempts would be futile. He must also be allowed the opportunity to provide such records, and be notified of any further actions that will be taken with regard to his claims, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 3. Thereafter, schedule the Veteran for a new VA audiological examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right ear hearing loss had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include conceded hazardous military noise exposure. In providing this opinion, the examiner should comment specifically on the effect, if any, of the Veteran's documented hazardous military noise exposure on the development of his right ear hearing loss. The examiner must also discuss the likelihood that the Veteran's right ear hearing loss is due to in-service noise exposure on a delayed or latent onset theory of causation. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Then, readjudicate the issues on appeal. If the full benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ James L. March 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. See 38 C.F.R. § 20.1100(b) (2013).