Citation Nr: 1753907 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-12 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972, which included service in the Republic of Vietnam. He then served in the Texas Army National Guard from January 1975 to January 1989, with an intervening period of Reserve Army Service. During that time he served on active guard reserve duty from February 1980 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a hearing at the RO before a Veteran's Law Judge in March 2017, but he canceled his hearing request in a March 2017 statement. In June 2017, the Board granted service connection for tinnitus and remanded the issue of hearing loss for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board's prior June 2017 remand directed the AOJ to obtain another VA examination. The Board found that the previous VA examinations were inadequate because both examiners failed to consider the Veteran's reports of onset of hearing loss during his military service in 1980 to 1982 and the July 2016 examiner relied on an inaccurate factual premise that his hearing was normal upon separation. The Veteran did not have an audiological examination at separation, but a whispered voice test. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. In light of the remand, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to procure any and all VA medical records not associated with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Arrange to have the Veteran's claims file returned to the July 2016 VA examiner for an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss. If that examiner is not available, arrange for the claims file to be reviewed by an examiner or examiners of appropriate expertise. A copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. The examiner is asked to provide an addendum medical opinion as to whether it is at least as likely as not (i.e., is at least a 50 percent probability) that the Veteran's currently diagnosed hearing loss disability is related to his periods of service from July 1969 to January 1972 and February 1980 to June 1982, to include exposure to excessive noise therein. The VA examiner should comment, as appropriate, on the Veteran's military physical examination including the audiological findings in April 1969, January 1972, January 1979, May 1988, and June 1989. Additionally, the examiner should take into account lay statements, to include those of the Veteran dated march 2010, indicating that his hearing loss and "hissing in the ears" has worsened over the years since his exposure to loud noises in service, as well as the Veteran's statements made during the May 2010 VA examination regarding the onset of his hearing loss. For purposes of this addendum opinion, the examiner should presume that the Veteran was exposed to excessive noise as a result of his duties as an airframe repairman from June 1969 to January 1972 in the Army and as a "cannoner" from February 1980 to June 1982 in the Army National Guard. For each opinion, the examiner must provide a complete rationale, based on examination findings, historical records, and medical principles, for all opinions expressed. If the examiner determines that the opinion sought cannot be given without resorting to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the requisite knowledge or training). See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefits sought remain denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The Veteran 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). _________________________________________________ BRADLEY W. HENNINGS 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).