Citation Nr: 1338177 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-28 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1997 to April 1998 and from June 2004 to November 2005. This matter is on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. An appeal on the issue of entitlement to service connection for an acquired psychiatric disorder was also perfected by the Veteran. However, in a March 2012 decision, he was granted service connection for this disorder. This represents a full grant of the benefit sought on appeal, and it is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). The issue of entitlement to service connection for a respiratory disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal was remanded by the Board in July 2012 and July 2013 for further development and is again 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 order to prevent any potential prejudice, the Board determines that the claim should be again remanded. For purposes of background, the Veteran submitted an application to reopen his previously denied claim for bilateral hearing loss in August 2008. In support of his claim, he also submitted a private audiological evaluation reflecting hearing loss of 40 dB or greater at 1000 Hz, which is sufficient to establish impaired hearing for VA purposes. 38 C.F.R. § 3.385 (2013). Despite the August 2008 private evaluation, the RO denied the claim in December 2008 based substantially on the findings of a September 2009 VA examination, which determined that the Veteran did not have bilateral hearing loss for VA purposes. After the Veteran submitted a timely appeal, the Board reopened the claim, but determined that the September 2009 VA examination was inadequate, as the examiner did not discuss the contradicting evidence from the August 2008 private audiological evaluation. As such, the claim was remanded for a new examination. While the Veteran was afforded a new VA examination in November 2012, the examiner determined that the audiological test results were inconsistent, and did not appear to reflect a maximal effort. Nevertheless, the Board determined that the Veteran should be offered another chance to undergo a VA audiological examination, and the claim was again remanded in July 2013. Unfortunately, while the Veteran was scheduled for a new VA examination in August 2013, he failed to report. He submitted a statement in September 2013, asserting that he had good cause to miss his scheduled examination, due to a short notice change in his work schedule. As the Board noted in July 2013, the Veteran has a history of not cooperating with the examination process. However, it is also noted that a temporary file has been added to the claims file, and it is not clear whether this evidence was reviewed prior to the issuance of the most recent supplemental statement of the case in August 2013. Although much of it appears either repetitive or obviously unrelated to the issue on appeal, it is best in this case that the claims file be consolidated and it be established that all evidence has been considered. In addition, based on the Veteran's representation in September 2013, the Veteran should be given an additional opportunity to appear for his VA audiological examination. Even so, the Veteran is again advised that it is incumbent upon him to submit to a VA examination if he is applying for VA compensation benefits. Dusek v. Derwinski, 2 Vet. App. 519 (1992). If he fails to report for a scheduled examination, without good cause, his claim will be decided based on the evidence of record, which may be insufficient to render a favorable decision. 38 C.F.R. § 3.655(a) and (b). Also, it is the Veteran's responsibility to cooperate with VA, which includes cooperating with the VA examination process. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Thus, he is hereby advised that further failure to cooperate with the VA examination process may adversely affect the outcome of his claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA audiology examination to assess the etiology of any diagnosed hearing loss disability during the period of the appeal. The claims file (including the Veteran's Virtual VA file and the temporary file) and a copy of this remand must be provided to the examiner and reviewed as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner is advised that the Veteran seeks service connection for bilateral hearing loss associated with his period of active duty from June 2004 to November 2005. Evidence of record has established his exposure to acoustic trauma during this period of active duty. The examiner is also advised that the Veteran had VA examinations in June 2006 and September 2010 that did not find evidence of a hearing loss disability as defined by VA in 38 C.F.R. § 3.385. However, an August 2008 private audiology evaluation from ENT Associates shows a 45 decibel loss in the Veteran's right ear and a 40 decibel loss in his left ear at 1000 Hertz. These findings qualify as a hearing loss disability under VA regulations. The current VA examiner should conduct the standard audiology examination as indicated by the applicable examination worksheet or disability questionnaire. The examiner should then answer the following questions: a. Does the August 2008 the ENT Associates audiogram represent actual hearing loss disability or was it an anomaly in light of the comments of the other VA examiners as to the Veteran having variable test results. b. If the Veteran is found to have hearing loss disability according to 38 C.F.R. § 3.385 at any point during the period of this appeal (to include on current audiometric testing and/or as shown by the August 2008 private audiogram), provide an opinion as to whether it is at least as likely as not that the hearing loss disability is related to the Veteran's military service, to include his conceded exposure to acoustic trauma therein. In answering these questions, the examiner should address the Veteran's reports of hearing problems. If any opinion cannot be provided without resort to speculation, the examiner must provide the reasoning for that determination and clearly identify the precise facts which could not be determined. 2. After the requested examination has been completed, the report should be reviewed to ensure complete compliance with the directives of this Remand. If the report is deficient in any manner, it should be returned to the examiner. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, re-adjudicate the claim for service connection for bilateral hearing loss disability. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an 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). 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). _________________________________________________ Michael J. Skaltsounis Acting 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).