Citation Nr: 1338454 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-04 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Veteran contends that he is entitled to service connection for bilateral hearing loss. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The record reflects that the Veteran was afforded a VA examination in May 2010 to determine the etiology of his bilateral hearing loss. The examiner noted that the claim claims file was not available for review at this time and an opinion about hearing loss and military noise exposure could not be offered. An addendum to the above examination was obtained in August 2010. The examiner concluded that it was impossible to determine without speculation whether the Veteran's hearing loss was related to military service. The examiner's rationale was that the Veteran had an extensive history of civilian occupational and recreational noise exposure. Hence, the requested opinion has not been obtained. The Board finds that the Veteran should be scheduled for a new VA examination, by an appropriate physician or audiologist, before appellate review may proceed. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board points out that, in providing a rationale as to why an opinion could not be offered without resorting to speculation, the examiner failed to provide any discussion of the Veteran's in-service noise exposure. The Veteran's personnel records confirm that he participated in operations against the Viet Cong while serving in the Republic of Vietnam. His DD-214 also reflects that he served as a rifleman. As such, his in-service noise exposure is conceded and the examiner should fully consider and discuss the in-service noise exposure when formulating any opinion. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent outstanding, private record. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses have been associated with the claims file, or, an appropriate time period for the Veteran's response has expired, the Veteran should be scheduled for a new VA examination, by an appropriate physician or audiologist, to obtain an opinion as to the etiology of his bilateral hearing loss. The Veteran's entire claims file, to include a complete copy of this REMAND, along with copies of any relevant Virtual VA records, must be made available for review by the examiner in conjunction with the scheduled examination, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. The examiner is asked to perform all indicated tests and studies, and opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's bilateral hearing loss manifested during, or as a result of, active military service. In rendering the requested opinion, the examiner should consider and discuss: (a) the Veteran's conceded in-service noise exposure associated with combat, and (b) any lay assertions provided by the Veteran in support of his claim. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner should fully discuss why this is the case. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After accomplishing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal in light of all of evidence of record and pertinent legal authority. 6. If the benefit sought on appeal remains denied, provide the Veteran and his representative an appropriate supplemental statement of the case as to the issue on appeal, and afford them a reasonable period of time within which to respond thereto before the claims file is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).