Citation Nr: 0120763 Decision Date: 08/14/01 Archive Date: 08/16/01 DOCKET NO. 98-05 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to assignment of a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esq. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from July 1968 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 1997 and March 1998 rating decisions by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board. By decision dated October 12, 1999, the Board (in part) denied service connection for a low back disorder and found that the schedular criteria for a compensable evaluation for service- connected bilateral hearing loss had not been met. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a "Joint Motion to Vacate and Remand in Part, to Dismiss Remaining Issue on appeal, and to Stay Further Proceedings" (Joint Motion), the parties requested that the Board decision as to the above two issues be vacated and the case be remanded for further development and proceedings. In a January 3, 2001, Order, the Court granted this motion. The October 12, 1999, Board decision also addressed the issue of entitlement to an evaluation in excess of 10 percent for service-connected scar on the chin. In the Joint Motion, the parties requested that the Court dismiss that issue. In the January 2001 Order, the Court dismissed the appeal as to that issue. REMAND In the Joint Motion, the parties noted that the record contained evidence that the veteran was treated for a back condition prior to 1983, and that this evidence was not mentioned by the Board in its October 1999 decision. A January 1977 x-ray report was cited as showing some low back abnormality. The parties further noted discrepancies in the VA examinations from September 1997 and June 1998 in terms of differing interpretations of a September 1997 x-ray study. As to the veteran's claim for a compensable evaluation for service-connected bilateral hearing loss, the parties stated in the Joint Motion that the veteran's job required the ability to understand directions in a noisy setting. The speech discrimination testing on VA examination was done in a quiet setting. The parties have requested consideration of the appropriateness of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2000). The Board also notes that VA issued new regulations for evaluating impairment of auditory acuity effective June 10, 1999. 62 Fed. Reg. 25,202-25,210 (May 11, 1999). Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Appropriate action by the RO to consider both the old and the current criteria should be accomplished. In addition, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106- 475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In view of the need for additional development as outlined in the Joint Remand, review by the RO to ensure compliance with this new legislation is also appropriate. The Board also notes that additional evidence has been received. Specifically, the record now includes a May 2001 "Independent Medical Evaluation" from a private physician as well as a May 2001 report of speech/audiology examination. Although the veteran submitted a waiver of preliminary RO review, the RO's attention is directed to this new evidence in view of the need for additional action at the RO level as outlined above. Accordingly, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA, Pub. L. No. 106-475 is completed. 2. The RO should request that the veteran identify all medical care providers who have treated him for his low back disorder and/or hearing loss, and whose reports/records are not already contained in the claims file. After securing any necessary release(s), the RO should request copies of all such records. 3. The RO should arrange for an examination of the veteran by an appropriate VA specialist for the purpose of ascertaining the nature and etiology of the veteran's current low back disorder(s). It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. Any medically indicated special studies and tests should be accomplished. All current low back disorders should be clearly identified. As to each low back disorder found to be present, the examiner should provide an opinion as to whether it is at least as likely as not that such low back disorder is related to lifting mortars during service or whether it is more likely than not that such disorder is due to a post-service cause. For purposes of this opinion, the examiner should assume that the veteran's duties during service included lifting mortars and carrying large loads of rounds during combat in Vietnam. In offering an opinion as to each current low back disorder found to be present, the examiner should comment on: a) the significance of x-ray findings as reflected in a January 25, 1977, report from St. Francis Hospital Center; and b) the May 22, 2001, report and opinion by Craig N. Bash, M.D. A detailed rationale for all opinions expressed is hereby requested. 4. The RO should arrange for an examination of the veteran by an appropriate VA specialist for the purpose of ascertaining the nature and extent of severity of the veteran's bilateral hearing loss. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. The examiner should perform audiometric testing in compliance with VA regulations. The examiner should also provide an opinion as to the effect of a noisy work environment on the veteran's speech discrimination. 5. The RO should then review the expanded record and determine whether service connection for low back disorder is warranted and whether entitlement to assignment of a compensable evaluation for service-connected bilateral hearing loss is warranted. In addressing the bilateral hearing loss claim, the RO should consider both the old and the current rating criteria. Additionally, the RO should expressly consider whether action pursuant to 38 C.F.R. § 3.321(b)(1) for extraschedular consideration is warranted. The veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ALAN S. PEEVY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).