Citation Nr: 1736695	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-01 237	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


Entitlement to service connection for bilateral hearing loss.  


Appellant represented by:	Colorado Division of Veterans Affairs


A. B., Counsel


The Veteran served on active duty from February 1963 to February 1967.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The claim was remanded multiple times by the Board, most recently in February 2017, for further development.  Unfortunately, the requested development has not been completed.  

Accordingly, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


In the February 2017 Board remand, a VA opinion was to be obtained to address specific questions regarding the claim for service connection for bilateral hearing loss.  The Board did not instruct that the Veteran be reexamined, but rather that a VA opinion be obtained.  

In March 2017, the RO informed the Veteran that he would be provided with a new VA examination.  The Veteran failed to report for the examination scheduled that month.  

Rather than requesting a VA opinion, the RO issued a supplemental statement of the case in which the RO noted that the Veteran failed to report for an examination and the claim for service connection is denied.  Significantly, VA's duty to assist statute and regulation do not require that examination be conducted, but rather, makes VA responsible for providing "a medical examination or obtaining a medical opinion" when review of the record reflects it is necessary to render a decision on the claim.  38 U.S.C.A. § 5103A(d)(1) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2016) (emphasis added).  Here, the Board's remand order did not require a VA examination, but rather just a VA opinion.  It is not necessary for the Veteran to report for an examination for the RO to comply with the Board's remand instructions. 

Therefore, as the Board's February 2017 remand order has not been complied with, another remand of the claim is necessary.  See Stegall v. West, 11 Vet. App 268 (1998) (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).  The opinion requested in the 2017 Board remand should be obtained, without an examination being conducted.

Accordingly, the case is REMANDED for the following action:

1.  Request an opinion from an appropriate clinician of relevant expertise to provide a supplemental medical opinion in this case.

The clinician should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss disability had its onset in active service or is otherwise causally related to active service.

For purposes of this opinion, the VA clinician should assume the Veteran was exposed to loud noise in service.

The clinician should consider the entire claims file, to include the Veteran's reports of medical history, any entrance and separation examinations, any previous audiological VA examination reports, the Veteran's in-service occupational specialty, and the Veteran's post-service employment.

The VA clinician should also fully address the Veteran's February 1967 separation examination report, which indicates the Veteran had some degree of hearing loss (auditory thresholds of 25 decibels as 3000 Hertz in each ear) at the time of separation from service.  The threshold for normal hearing, according to VA law as interpreted by the Court, is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Board notes that the February 1967 audiometric report must be converted to ISO units.

The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles.

As noted above, an examination should not be conducted and is not required in this case.

2.  Then, readjudicate the issue on appeal.  If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case.  Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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).

Jonathan Hager
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).


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