Citation Nr: 1612424 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 09-34 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In February 2014, the Board remanded the appeal for further development. The Veteran has waived his right to have medical evidence received after the last RO adjudication reviewed in the first instance by the RO. See VBMS Entries 10/28/14 & 12/3/14. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future review of this appellant's case must consider the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2014, the Board remanded the appeal in order to afford the Veteran with a new VA examination. The Board directed the examiner to obtain a detailed account of noise exposure before and after service, including whether the Veteran used hearing protection devices at those times. The Veteran has asserted that he had no significant noise exposure before or after service. See, e.g., December 2008 VA Form 21-4138 (VBMS Entry 12/19/08). In the subsequent April 2014 VA examination report with an August 2014 addendum, the examiner provided a negative nexus opinion, stating that although in-service noise exposure was previously conceded based on the Veteran's military occupational specialty, the fact remained that the Veteran had normal hearing on separation from service. The examiner stated that research studies have shown that hazardous noise exposure has an immediate effect on hearing and does not have a delayed onset. In rendering this opinion, the August 2014 VA examiner did not elicit the medical history as directed or otherwise address why the Veteran's hearing loss would be unrelated to service in the absence of any other significant acoustic trauma. Further, in response to the report, the Veteran's representative provided summaries of medical research supporting the delayed onset of hearing loss following noise exposure. VBMS Entry 2/26/16. The examiner should address this literature on remand. Of note, the Board has carefully reviewed the Veteran's statements submitted throughout the course of the appeal, and those of his representative, and while he has provided many statements regarding his conceded in-service noise exposure, he has not made any statement alleging a continuity of symptomatology since discharge. See 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). On remand, the RO should request a statement from the Veteran as to whether or not he has experienced a continuity of symptoms since noise exposure in service. Accordingly, the case is REMANDED for the following action: 1. Advise the Veteran and his representative that he may submit any further evidence supporting his claim for service connection for hearing loss. Provide authorizations for the release of any further information noted by the Veteran and obtain any evidence cited in accordance with the duty to assist procedures. Ask the Veteran to provide a statement as to whether he has experienced a continuity of hearing loss symptoms since his in-service noise exposure. 2. After any additional records have been associated with the e-folder, provide the Veteran's electronic claims file to the April 2014 examiner for an addendum opinion. Unless determined otherwise by the VA examiner, an actual examination of the Veteran is not required. The claims folder/e-folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. The examiner must provide an updated opinion as to whether the Veteran's bilateral hearing loss began during active service or is related to any incident of service, including his conceded in-service noise exposure. All examination findings, along with a complete explanation for all opinions expressed, must be set forth in the examination report. As previously directed by the Board, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. THE EXAMINER MUST ADDRESS THE FOLLOWING: * Veteran's contentions of minimal noise exposure prior to or after service, in contrast to his significant in-service noise exposure. See, e.g., December 2008 VA Form 21-4138 (VBMS Entry 12/19/08). * Medical research raised by Veteran's representative a supporting the delayed onset of hearing loss following noise exposure. VBMS Entry 2/26/16. 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence. If the benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for a response. 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 2014). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).