Citation Nr: 1338193 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-28 991 ) 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: Vietnam Veterans of America ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1946 to June 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). While the Veteran's appeal was in remand status, his claim for entitlement to service connection for residuals of a cold weather injury to the bilateral lower extremities was granted in a June 2013 rating decision. In addition, his claim for entitlement to service connection for tinnitus was granted in a September 2013 rating decision. These actions constitute a full grant of the benefit sought on appeal with respect to these two issues, and they are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 August 2013, the Veteran's claim was remanded to the RO in order for the RO to obtain a VA medical opinion with regard to the etiology of the Veteran's bilateral hearing loss. The Board found that the May 2013 VA examination was inadequate after it found the Veteran's lay statements reflecting in-service noise exposure from howitzers to be both competent and credible. The Board requested that the VA examiner provide an opinion as to the etiology of the Veteran's current bilateral hearing loss which addressed the competent and credible lay evidence of in-service noise exposure and symptoms since service discharge. The May 2013 VA examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of military service. However, the VA examiner then stated that the exact etiology of the hearing loss could not be determined, and that the hearing loss configuration and acoustic reflex pattern was not consistent with exposure to noise. The Board found this opinion inadequate as it did not provide any explanation or rationale for the conclusion. For example, there was no explanation how the Veteran's hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure. The Board therefore directed a new VA examination occur with consideration and discussion of the Veteran's competent and credible lay statements as to his in-service acoustic trauma including his acknowledged acoustic trauma from exposure to howitzers for several weeks without the use of hearing protection. The VA examiner was also instructed to interview of the Veteran as to the nature and approximate onset of bilateral hearing loss, as well as his history of military, post-service occupational, and post-service recreational noise exposure. Finally, a complete and thorough rationale must be provided for all opinions provided. A second VA examination occurred in September 2013, but the remand directives were not followed. The examiner merely quoted the first VA examiner stating that the Veteran's hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure. The examiner then stated it was reasonable to assume that the after service occupational noise exposure and that of recreational noise exposure is more likely the major contributor to hearing loss that is present in addition to any age related factors. The second VA examination is still not adequate as it does not comply with the Board's remand directives. The first VA examination also noted the Veteran had a 35 year history in construction and that the Veteran's recreational hobbies included hunting. The September 2013 VA examination provided no further details, including the nature and extent of the exposure in construction and hunting. There is no information from the Veteran as to the nature and approximate onset of bilateral hearing loss. There is also no discussion regarding the Veteran's lay evidence that he was exposed to gunfire and howitzer without hearing protection. The second VA examination report does not explain how the hearing loss configuration and acoustic reflex pattern were not consistent with exposure to noise. Further, the opinion regarding the hearing loss configuration and acoustic reflex pattern seems inconsistent with the other opinion that civilian noise exposure caused the current hearing loss. Finally, even if the Veteran's post- service noise exposure is the major factor in his hearing loss, the examiner does not explain how the in- service noise exposure could still be a cause, albeit lesser cause, of the hearing loss. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the RO must provide the Veteran with new VA examinations addressing the etiology of his bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran a VA examination with an appropriate examiner to determine if the Veteran has a current hearing loss and its etiology. The claims file should be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has a bilateral hearing loss disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, to specifically include the Veteran's competent and credible lay statements of noise exposure to howitzers and gun fire without hearing protection during active duty, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. In the examination, the VA examiner must interview the Veteran in detail as to his service noise exposure, the onset and subsequent history of symptoms, his post-service occupational noise exposure, and his recreational noise exposure When providing an opinion, the examiner should consider the Veteran's statements as credible regarding his exposure to howitzers without hearing protection for several weeks and gun fire. If the examiner determines the current hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure or does not demonstrate a typical pattern for sensorineural hearing loss, the examiner is asked to explain what facts or test results support that conclusion and how such a fact relates to whether the Veteran has a hearing loss related to service. 2. After the development requested is completed, adjudicate the claim for service connection for bilateral hearing loss. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).