Citation Nr: 1415667 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 13-15 574 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1957 to December 1960. This appeal to the Board of Veterans' Appeals (Board) initially arose from an April 2012 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for bilateral hearing loss. In February 2014, the Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013). The Board notes that this appeal is now being processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. For the reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file revealed that further RO action on the claim for service connection for bilateral hearing loss is warranted. The Veteran contends that his exposure to noise while in service, specifically his daily use of headsets as a radio and Morse code operator, has resulted in the claimed hearing loss. In an April 2012 opinion, the VA audiologist attributed the Veteran's bilateral hearing loss to a lifetime of occupational noise exposure and aging. However, this opinion did not contain a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301(2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In an April 2013 addendum, the audiologist cited to various medical treatises and articles, but did not detail its relevance to the instant claim. Moreover, the Board notes that the Veteran's contention that his daily use of headsets as radio and Morse code operator resulted in his hearing loss, as well as the articles on such hearing loss submitted by the Veteran, were not specifically addressed by the VA audiologist. Under the circumstances noted above, the Board finds that further opinion-based on full consideration of all evidence, to include the Veteran's lay assertions, and supported by clearly-stated rationale-is needed to resolve the service connection claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should forward the claims file to the audiologist who evaluated the Veteran in April 2012 for an addendum opinion. The RO should only arrange for further examination of the Veteran if the prior audiologist is unavailable, or if further examination of the Veteran is deemed necessary. Prior to obtaining further opinion in connection with this claim, to ensure that the record is complete, and that all due process requirements are met, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002)); but see also 38 U.S.C.A. § 5103(b)(3) (2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current 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. 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. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the last adjudication of the claim. 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 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, all outstanding, pertinent records. Also clearly explain to the Veteran that he had 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 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 received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, to the audiologist who provided the April 2012 opinion for an addendum opinion. With respect to current bilateral hearing loss, the audiologist should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or was otherwise incurred in service. In rendering the requested opinion, the audiologist should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. The audiologist should specifically consider the Veteran's contentions that his hearing loss was caused by his daily use of headsets as a radio and Morse code operator. In addition, the audiologist should discuss the significance, if any, of the articles on hearing loss associated with the use of headsets and/or other technology submitted by the Veteran's representative in January 2012 and January 2013. If the audiologist who provided the April 2012 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file. Then, arrange for the Veteran to undergo another VA examination, by an audiologist or physician at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. In such event, content of the entire claims file (paper and electronic) to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the audiologist prior to the completion of his or her report), and all clinical findings should be reported in detail. All examination findings and testing results (if any), along with the complete rationale for the conclusions reached, must be provided. 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. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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 REMAND 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) (2013).