Citation Nr: 1752393 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-04 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter was previously before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned Veterans Law Judge at a July 2014 hearing at the RO, and a transcript of that hearing is of record. The Board remanded the claim in February 2015. This matter is now before the Board after the United States Court of Appeals for Veterans Claims granted a Joint Motion for Remand in June 2017 and vacated the Board's January 2017 decision that denied service connection for right ear hearing loss disability. REMAND The June 2017 Joint Motion for Remand agreed that additional development of the record was required to determine whether the Veteran was entitled to service connection for a right ear hearing loss disability. Specifically, the Joint Motion for Remand noted that the Board's decision denying the Veteran's claim did not include a discussion of the Veteran's lay statements regarding the accuracy of the audiometric test results included in his separation examination. In a July 2015 statement, the Veteran asserted that he was given two hearing tests at separation but only one was in the record and it was not his. The Veteran also stated in March 2014 that it was extremely unlikely that an audiometric test was conducted. Further, the RO noted in a December 2012 Statement of the Case that it was uncertain whether actual testing was done at the Veteran's separation examination. The June 2015 medical opinion did not include an analysis of that evidence. Thus, it is not sufficiently adequate to allow the Board to make a decision regarding the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (When there is insufficient competent medical evidence on file for the Board to make a decision on the claim, a VA examination is warranted). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination. The examiner must review the claims file and must note that review in the record. A complete rationale for any opinion expressed should be provided. The examiner should provide the following: (a) The examiner should opine whether right ear hearing loss disability clearly and unmistakably existed prior to the Veteran's entry into service. (b) If the examiner determines that a right ear hearing loss disability clearly and unmistakably existed prior to entry to service, the examiner should state whether there is clear and unmistakable evidence that the preexisting right ear hearing loss disability did not increase in severity during service. The examiner should specifically discuss if there is any reason to question the validity of the service separation examination, to include a comparison with results from service examinations in November 1965 and December 1965. For the purpose of this opinion only, the examiner should consider the Veteran's claim that the audiometric test results from the separation examination were not his. The examiner should also consider whether an audiometric test was performed at separation. The examiner should address a May 2014 private audiology examination in which the examiner questioned the validity of the separation hearing examination. (c) If a preexisting right ear hearing loss disability underwent an increase in disability during service, the examiner should opine whether any increase in disability was beyond the natural progress of the disease? The examiner should discuss the results from the service entrance examination. (d) If the examiner determines that right ear hearing loss did not preexist service, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that hearing loss was incurred in service or was due to noise exposure in service. They examiner should consider the Veteran's lay statements regarding onset and symptoms of hearing loss. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).