Citation Nr: 1342966	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  07-32 755	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel


INTRODUCTION

The Veteran served on active duty from April 1975 to August 1995.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's attempt to reopen claims for service connection for bilateral hearing loss and tinnitus.  

In September 2011, the Board reopened the Veteran's claim for service connection for bilateral hearing loss and remanded the case for further development.  

In July 2013, the Board again remanded the case for further development.  

A Board hearing was scheduled in Washington, DC, at the Veteran's request in June 2008.  In correspondence dated in June 2008, the Veteran stated that he would be unable to attend the hearing.  He did not request that the hearing be rescheduled.  Accordingly, the Board considers the Veteran's request for a hearing withdrawn.

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

Despite noting that the evidence of record clearly shows that the Veteran does not currently have bilateral hearing loss for VA compensation purposes and, absent such disability, service connection cannot be granted, the Board remanded the case in July 2013 solely to afford him proper notice of the information and evidence necessary to substantiate his claim for service connection for bilateral hearing loss.  At no time during the pendency of the appeal had VA provided the Veteran with any notice of the information and evidence necessary to substantiate his claim as required.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

VA sent the Veteran a letter in September 2013 advising him that evidence was needed showing that bilateral hearing loss existed from military service to the present time.  The VA notice provided is inadequate as it does not provide the Veteran with all the criteria to substantiate a service connection claim, including the existence of a current disability and an etiological link between the current disability and the Veteran's service.  Therefore, another remand is warranted to ensure compliance with those prior directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Accordingly, the case is REMANDED for the following action:

1.  Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to the issue of entitlement to service connection for bilateral hearing loss.  The notice must include an explanation as to all the information or evidence needed to establish service connection and the assignment of the effective date and disability rating of any award for the claim on appeal, as outlined in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

2.  Thereafter, undertake any further development necessary.

3.  Then readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case (SSOC) and return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matter 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).



_________________________________________________
RONALD W. SCHOLZ
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).