Citation Nr: 1433232 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 05-21 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for kidney cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to May 1969 and received the Purple Heart and Combat Infantry Badge, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was provided a VA compensation examination for hearing loss in January 1990. He was scheduled for new VA examinations in April and May of 2005, but he did not report for those examinations. By statement dated June 2005, the Veteran asserted that he never received notice that he had been scheduled for VA examinations. A March 2011 VA outpatient treatment record notes that the Veteran's hearing loss is significant. No audiometric data was taken, but the examiner opined that the hearing loss is severe enough to merit evaluation. The Board finds that, since the last VA compensation examination for hearing loss was conducted in January 1990, and as the record does not adequately reveal the current status of his bilateral hearing loss, a remand is required to afford him a more recent VA examination. Service personnel records show that the Veteran served in combat in the Republic of Vietnam. Thus, exposure to herbicides is conceded. The Veteran stated in October 2003 that kidney cancer, diagnosed in 2001, was caused by his exposure to herbicides while serving in Vietnam. He explained that he has no family history of kidney cancer and has never smoked. June 2001 private treatment records for kidney cancer do not provide an etiology opinion. Service connection for kidney cancer was denied in a June 2004 rating decision, on the basis that kidney cancer is not one of the enumerated diseases subject to presumptive service connection due to herbicide exposure. Service connection can be established by evidence showing that a disease is directly related to Agent Orange exposure even if it is not a disorder for which a positive association with herbicide exposure is presumed. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the Board finds that an examination is necessary to assist in determining whether service connection for kidney cancer is warranted on a direct basis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an audiology examination to determine the current nature and severity of his bilateral hearing loss. All appropriate testing, to include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The examiner should also comment on the functional effects caused by any hearing loss. The claims file must be made available to and reviewed by the designated examiner for the pertinent medical and other history. The Veteran is hereby advised that failure to report for this examination, without good cause, may result in the summary denial of his claim for an increased rating. 38 C.F.R. § 3.655(b). 2. Schedule an appropriate VA compensation examination for a medical nexus opinion concerning the etiology of the Veteran's kidney cancer. The claims file must be made available to and reviewed by the designated examiner for the pertinent medical and other history. The examiner is asked to indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's kidney cancer is the result of his military service, including especially exposure to Agent Orange. The examiner must discuss the rationale of the opinion based on the findings on examination and information obtained from review of the record. 3. After completing the above and any additional development the RO deems necessary, readjudicate the claims for an increased rating for bilateral hearing loss and service connection for kidney cancer in light of all additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. 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). _________________________________________________ H. SEESEL 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).