Citation Nr: 1805005 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-17 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This matter was previously before the Board in June 2016, at which time it was remanded for further development. For the reasons addressed below, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran, if further action is required. REMAND The Board finds that this matter must again be remanded in order to ensure compliance with its June 2016 remand directives. Stegall v. West, 11 Vet. App 268 (1998). This appeal was previously before the Board in June 2016, at which time it was remanded for further development. The Board was concerned that the VA examination afforded the Veteran in December 2010 lacked any discussion of the Veteran's contentions as to onset and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The December 2010 examiner opined that because the Veteran's hearing evaluations at entrance and separation were within normal limits with no significant threshold shifts noted at separation, and because there was no claim of tinnitus during active service in the claim file, that the Veteran's hearing loss and tinnitus were unlikely to have been caused by or a result of acoustic trauma in service. However, as the Board pointed out, even though disabling hearing loss is not demonstrated at separation, a Veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board then noted that in a June 2011 rating decision, in connection with a grant of service connection for posttraumatic stress disorder (PTSD), the RO acknowledged in-service noise exposure in the acceptance of his claimed PTSD stressor, to include exposure to helicopter flights and shooting while the Veteran was on duty. In light of these concerns, the Board sought a new examination and opinion, addressing whether it is at least as likely as not (50 percent probability or more) that bilateral hearing loss and/or tinnitus originated in service or within one year of separation from service, or is otherwise related to any incident of service, to include exposure to noise during service. The examiner was asked to consider statements from the Veteran regarding the onset and any reported continuity of symptomatology. The Veteran was afforded a new VA examination in September 2016. However, the report does not reflect that the examiner considered the Veteran's statements in developing the opinion. Rather, the examiner again notes normal hearing at entrance and separation, as well as that there was no record of complaints or treatment in service. The examiner does discuss noise exposure in the context of the Institute of Medicine's statement that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. However, the examiner's opinion continues to be based purely on the audiogram findings, i.e. on the absence of a hearing loss disability in service, which was noted to be an inadequate reason for the opinion. The examination report does not contain any mention of the Veteran's statements regarding onset or continuity of symptomatology and does not even acknowledge the RO'S concession of noise exposure in service. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Therefore, the Board finds that a new VA audiological examination is warranted. Accordingly, the appeal is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the claimed disabilities on appeal. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. 2. Schedule the Veteran for a VA examination for hearing loss and tinnitus. The examiner must review the claims file and must note that review in the report. Any further indicated tests and studies should be conducted. A complete rationale should be given for all opinions and conclusions expressed. The examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent probability or more) that bilateral hearing loss and/or tinnitus originated in service or within one year of separation from service, or is otherwise related to any incident of service, to include exposure to noise during service. The examiner must consider statements from the Veteran regarding the onset and any reported continuity of symptomatology. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ 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).