Citation Nr: 1805065 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-03 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from November 1977 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified at a videoconference hearing before the Veterans Law Judge (VLJ) Thomas Dannaher in March 2014. A transcript of the hearing is of record. In October 2017, the Veteran was notified that VLJ Dannaher was no longer with the Board and of his right to request another Board hearing. The Veteran was also notified that if he did not respond within thirty days from the date of the October 2017 letter, then the Board would assume that he did not want another hearing. The Veteran has not responded to this letter. As such, the Board may proceed to a decision. In November 2015, the Board denied the claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2017 decision, the Court vacated the Board's decision and remanded the case for further action consistent with its decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its March 2017 decision, the Court found that it was not clear from the record, nor had the Board addressed, whether the December 2012 VA examiner accepted the Veteran's report of military noise exposure as true or made his own assessment of the Veteran's credibility in rendering his opinion. The Court expressed particular concern with the Board's failure to address this ambiguity in the December 2012 VA examiner's opinion. In light of the above and after a review of the record, the Board finds that another VA examination is warranted. It appears from the December 2012 VA examination report that the examiner did not adequately consider the Veteran's assertions of in-service noise exposure. Additionally, in the July 2017 Informal Hearing Presentation, the Veteran's representative submitted medical treatise evidence suggesting the possibility of delayed onset hearing loss. While, this evidence is insufficient to decide the claim as it is too general and inconclusive to satisfy the benefit-of-the-doubt standard, a VA opinion addressing it is required. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private medical care providers who treated the Veteran for his hearing loss or tinnitus. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The examiner must review all VBMS and Virtual VA records and should note that review in the report. A complete rationale for any opinions expressed must be provided. All indicated tests must be performed. The examiner must address the following whether it is at least as likely as not that the Veteran's hearing loss and/or tinnitus was due to his active military service. The examiner should assume for the purpose of the opinion that the Veteran had military noise exposure from flight line and ambulance noise while serving as a hospital corpsman. The examiner should also address the medical treatise evidence cited in the July 2017 Informal Hearing Presentation. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must 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 needed knowledge or training. 3. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. He is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 4. After the requested development has been completed, the RO should review the record to ensure that it is in complete compliance with the directives of this remand. If the development is deficient in any manner, the RO must implement corrective procedures at once. 5. Thereafter, readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review The appellant 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 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein 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).