Citation Nr: 1757092 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-04 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received respecting a claim of service connection for a right heel disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Reed, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1979 to April 1983. These matters come before the Board of Veteran's Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned in a March 2017 Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In his June 2013 claim, the Veteran attributed his left ear hearing loss to his left shoulder injury and tinnitus, and his right ear hearing loss to his military duties as the coxswain on Coast Guard vessels. In September 2013, the Veteran underwent a VA examination in connection with this claim, in which the examiner determined that the Veteran had left ear sensorineural hearing loss and normal hearing in his right ear. The September 2013 VA examiner opined that the Veteran's left ear hearing loss was less likely than not caused by or a result of an event in military service, basing her rationale on the absence of complaints of hearing loss while in service and three in-service audiometric evaluations which show normal hearing in both ears. However, the examiner does not address the Veteran's lay statements concerning the etiology of his hearing loss; no discussion is made of the Veteran's claimed in-service noise exposure, his service-connected tinnitus, or his service-connected left shoulder condition. Importantly, the Veteran is already service-connected for tinnitus based on the fact that it is caused by the medication he took to treat his service-connected clavicle condition. Therefore, the examiner must address whether the Veteran's hearing loss is also related to the medication used to treat the Veteran's fractured clavicle. Moreover, the September 2013 VA examiner's opinion is based solely on a lack of any noted hearing loss during military service; however, a lack of any noted hearing loss in service is not fatal to a claim of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A remand is necessary in order to obtain another VA opinion which addresses the above deficiencies. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, in his March 2017 Board hearing, the Veteran asserted that his claimed bilateral hearing loss had increased in severity since last evaluated in September 2013. A new VA examination is therefore required to determine whether the Veteran currently suffers from right ear hearing loss for VA purposes. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Allday v. Brown, 7 Vet. App. 517, 526 (1995). With respect to the Veteran's right heel disability claim, the Veteran filed an August 2009 notice of disagreement with the June 2009 rating decision. However, the RO has not issued a statement of the case with regard to the right heel disability claim. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a SOC with respect to his right heel disability claim. Inform the Veteran of the need to timely file a substantive appeal to perfect his appeal on this issue. 2. Schedule the Veteran for a VA audiological examination by an appropriate professional who has not previously examined the Veteran. The entire claims file, including all electronic files, must be reviewed by the examiner. Audiometric testing should be completed and any bilateral hearing loss disability under 38 C.F.R. § 3.385 should be noted. Then, the examiner should opine whether the Veteran's bilateral hearing loss at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any noise exposure therein. The examiner should also opine as to whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent or greater probability) either (a) caused by; or (b) aggravated (e.g., worsened beyond the normal progression of that disease) by the Veteran's service-connected left shoulder disability or tinnitus, or any medications taken to treat these service-connected conditions. If aggravation of the Veteran's bilateral hearing loss disorder by his service-connected left shoulder disability (or medication taken to treat the condition) or tinnitus is found, the examiner must attempt to establish a baseline level of severity of his bilateral hearing loss disorder prior to aggravation by the service-connected disabilities or the medications taken to treat them. The examination report must include a complete rationale for all opinions expressed. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ M. HYLAND 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) (2017).