Citation Nr: 1751205 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-08 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss, as secondary to service-connected tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The decision, in part, declined to reopen the Veteran's claim of entitlement to service connection for left ear hearing loss and denied the claim of entitlement to service connection for right ear hearing loss. In January 2014, the Board reopened the claim for service connection for left ear hearing loss and remanded the issue of service connection for bilateral hearing loss for additional development. In April 2016, the Board denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Joint Motion for Partial Remand (JMPR), the parties jointly moved for partial remand solely on the issue of service connection for hearing loss on a secondary basis. The Court vacated the 2016 decision for failure to consider the issue of service connection for the Veteran's bilateral hearing loss as secondary to his service-connected tinnitus. The Board's denial of service connection for bilateral hearing loss on a direct basis remains. The Court returned the claim of service connection for bilateral hearing loss on a secondary basis to the Board for further consideration. The claim has been recharacterized as noted on the title page to better reflect the issue. In June 2013, the Veteran testified by videoconference from the RO in Chicago, Illinois. A transcript of that hearing is of record. The Veterans Law Judge who conducted that hearing is no longer at the Board. Accordingly, the Veteran was offered an opportunity to testify at another hearing before the Board, which he declined. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets further delay, the Veteran's claim of entitlement to service connection for bilateral hearing loss disability, as secondary to service-connected tinnitus, must be remanded for further development in accordance with the terms of the JMPR and to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. A new VA examination and medical opinion must be obtained regarding the Veteran's bilateral hearing loss. The March 2014 examination diagnosed the Veteran with bilateral sensorineural hearing loss, as well as tinnitus. The examiner found that the Veteran's tinnitus was connected to service, but his hearing loss was not. The report did not address the issue of secondary service connection of the Veteran's bilateral hearing loss to his service-connected tinnitus. See March 2014 Audiological Examination; see also 38 C.F.R. § 3.310 (2016) (providing for service connection on a secondary basis). Accordingly, a new VA examination and opinion are required to address this issue. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice pertaining to his claim of entitlement to service connection for bilateral hearing loss as secondary to his service-connected tinnitus. See 38 C.F.R. § 3.310. 2. Contact the Veteran and inform him that the most recent private treatment records associated with the claims file are dated in July 2008. Provide the Veteran with VA Forms 21-4142, Authorization and Consent to Release Information to VA, for any recent private treatment records he asserts are relevant to his claim. Advise the Veteran that he may submit his private treatment records if he so chooses. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the file in accordance with 38 C.F.R. § 3.159. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Associate with the claims file all outstanding VA treatment records, dated since June 2016. 4. Thereafter, schedule the Veteran for an appropriate VA examination. The Veteran's entire claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss was either (i) caused by, or (ii) aggravated by, his service-connected tinnitus. In providing this opinion, the examiner must consider the April 1999 medical examiner's statement that the Veteran's "left ear tinnitus is symptomatic of his left ear high frequency sensorineural hearing loss" and history section note of "high risk factor for hearing loss included left ear tinnitus." See April 1, 1999 Audiological Assessment from Melissa Moore, Audiologist, contained in the Veteran's service treatment records. The examiner must provide a comprehensive report including a complete explanation for all opinions and conclusions reached. 5. Next, the RO should review the opinion to ensure that it adequately responds to the above instructions, including that it provides an adequate explanation in support of the opinion stated. If the report is deficient in this regard, return the case to the examiner for corrective action. 6. Finally, after the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ P.M. DILORENZO 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) (2016).