Citation Nr: 1338066 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-16 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to May 1959 and from August 1959 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and August 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for bilateral hearing loss and entitlement to TDIU. 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 Board finds that additional development is necessary before a decision may be rendered in this case. With respect to the claim for service connection for hearing loss, the Board finds that a new VA medical opinion is necessary to determine the etiology of the claimed disability. The Veteran was provided a VA audiological examination in September 2011, but the VA examiner's medical opinion against the claim was based only on a finding of normal hearing at the time of the Veteran's separation. A medical opinion which relies solely on the absence of hearing loss (as defined by VA regulation) at separation as a basis for a negative nexus opinion is inadequate on its face. Hensley v. Brown, 5 Vet. App. 155 (1993). A new VA medical opinion is therefore required by VA's duty to assist the Veteran in developing evidence to substantiate his claim. In addition, the Board finds that September 2011 VA examiner's medical opinion did not consider the proper evidentiary standard. The Veteran reports that he incurred acoustic trauma during combat service in the Republic of Vietnam. Service personnel records confirm that the Veteran served as a combat engineer in Vietnam and the noise exposure reported by the Veteran is consistent with the circumstances of his combat service. The incurrence of an in-service injury, i.e. acoustic trauma, is therefore presumed. 38 U.S.C.A. § 1154(b) (West 2002). The combat presumption contained within 38 U.S.C.A. § 1154(b) not only applies to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). The Veteran has reported the onset of continuous hearing loss since service and Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. Thus, upon remand, a medical opinion must be obtained addressing whether the Veteran's bilateral hearing loss clearly and convincingly did not have its onset during active duty service. Regarding the claim for TDIU, a remand is required for the issuance of a supplemental statement of the case (SSOC). In June 2013, the Veteran submitted a private medical opinion in support of his claim for TDIU. The new evidence was not accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). In the October 2013 informal hearing presentation, the Veteran's representative specifically requested that the AOJ review the new evidence, and the Veteran has a right to have the evidence considered by the AOJ. 38 C.F.R. § 20.1304(c). Thus, the claim for TDIU must be remanded to allow for readjudication by the AOJ. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to a VA examiner with the appropriate expertise to render a medical opinion in this case. The claims file must be reviewed prior to the issuance of the requested medical opinion. After review of the entire record, including the Veteran's statements regarding the onset of noise exposure during service, the examiner should determine whether there is clear and convincing evidence that the Veteran's bilateral hearing loss did not have its onset during active duty service. The Veteran's exposure to acoustic trauma through his combat service is presumed. A full rationale (i.e. basis) for all expressed opinions must be provided. The rationale must consist of more than the Veteran's normal hearing at separation from active service. 2. Readjudicate the claims on appeal with consideration of all evidence of record, including the June 2013 medical opinion from the Veteran's private physician. If the benefits sought are not fully granted, provide the Veteran and his representative a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ MILO H. HAWLEY 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).