Citation Nr: 1801848 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-03 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from November 1969 to May 1972 and in the Army National Guard of Wisconsin from June 1989 to March 1994. He had service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Milwaukee, Wisconsin, Regional Office (RO). In August 2011, the Veteran had a hearing with a Decision Review Officer (DRO) at the RO and, in June 2012, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge sitting at the RO. Hearing transcripts for both hearings are in the record. In December 2014 and in July 2016, the Board remanded the appeal to the RO for additional action. The issue of whether the Veteran is competent for VA purposes has been raised by the record in a November 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board has determined that an additional VA medical opinion is necessary and, therefore, the appeal is REMANDED as directed below. 1. REASONS FOR THE REMAND: In the August 2016 VA medical opinion, the examiner stated that the Veteran had no right ear hearing loss and that his left ear hearing loss was conductive and, therefore, not caused by noise exposure. In a February 2012 VA treatment record, however, this same examiner stated that the Veteran had sensorineural hearing loss. A new opinion is necessary to reconcile these diagnoses. 2. Return the file to the VA examiner who provided the August 2016 medical opinion. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA audiology examination to obtain an opinion as to the nature and etiology of a hearing loss disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. a. The examiner should address whether the Veteran has sensorineural hearing loss in one or both ears. b. If the examiner concludes that the Veteran does not have sensorineural hearing loss, an explanation is necessary to reconcile the differing diagnoses. c. If the examiner concludes that the Veteran does have sensorineural hearing loss in one or both ears, an opinion should be provided as to whether the sensorineural hearing loss was caused by in-service noise exposure. The examiner is reminded that a lack of in-service treatment records indicating hearing loss is not a sufficient rationale for a negative nexus opinion. The examiner's attention is drawn to the following: *Service treatment records, including November 1969 report of medical history and physical examination for service entrance, May 1972 physical examination for service separation, April 1989 medical prescreen questionnaire, and June 1989 report of medical history and physical examination for service entrance. *Service personnel records documenting dates of active service and National Guard service. *June 2009 claim for service connection and July 2009 and January 2012 statements providing history of in service noise exposure. *July and August 2009 VA treatment records. VBMS Entry 10/15/09, p. 1-2, 5-6. *September 2010 VA treatment record. VBMS Entry 9/27/10, p. 1-3. *September 2011 and February 2012 VA treatment records, including a diagnosis of sensorineural hearing loss. VBMS Entry 6/11/12, p. 1-5. *August 2012 private medical opinion. *July 2009, October 2009, September 2010, and September 2011 audiological evaluations. *October 2009 and March 2015 VA compensation and pension examinations. *August 2011 DRO hearing transcript and June 2012 Board hearing transcript. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).