Citation Nr: 1736570	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-19 088	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Laroche, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1959 to May 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied, inter alia, service connection for bilateral hearing loss.

In April 2015, the Board remanded the claim for further development.  In November 2016, the Board denied the claim for entitlement to service connection for bilateral hearing loss.  Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).

In a July 2017 order, the Court granted a Joint Motion for Remand (JMR) and remanded the matters to the Board for action consistent with the JMR. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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


REMAND

The July 2017 JMR found that a remand was necessary due to the Board's failure to adequately provide a statement of reasons or basis for its decision.  Specifically, in the November 2016 Board decision, the Board acknowledged the Veteran's statements, to include that he had a decrease in hearing after noise exposure without hearing protection, as well as being routinely exposed to engine noise while serving as a truck driver.  The Board also noted that the Veteran's DD Form 214 documented his military occupational specialty (MOS) as a light vehicle driver, and found that his asserted noise exposure was consistent with the circumstances of his service.  The Board found that the Veteran's statements were credible.  After making this finding, the Board relied on a July 2015 VA examination report to deny the Veteran's claim.   

In the July 2015 VA examination report, the examiner provided a negative nexus opinion, in part, because she found that there was no evidence found in the records relating to the presence of hearing loss during military service.  The Board found the examination report adequate and probative.  The parties to the Joint Motion, however, found that the Board did not adequately address the fact that the July 2015 VA examiner did not consider the Veteran's lay statements as to his in-service symptoms.  Thus, the Court vacated the Board's decision and remanded the claim for the Board to "reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case."  Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991).   

For the reasons above, an adequate nexus opinion is not of record.  An additional opinion is therefore required to address the etiology of the Veteran's bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).   

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request an opinion from an appropriate VA medical professional.  The entire claims file, and a copy of this remand, must be provided to and reviewed by the examiner.

The medical professional should provide an opinion as to whether the Veteran's current hearing disability is due in whole or in part to his noise exposure during active service.

The medical professional must provide a complete rationale for any opinion set forth and must specifically address the Veteran's statements, to include, but not limited to, the contention that he experienced hearing loss in-service and was routinely exposed to noise.

2.  After the above development has been completed, readjudicate the claims for entitlement to service connection for bilateral hearing loss.   If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response.

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 Court 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).
Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s