Citation Nr: 0811771 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-23 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The veteran served on active duty from July 1978 to July 1981 and from November 1982 to May 2004. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral hearing loss and assigned a 0 percent rating, effective June 1, 2004. The veteran perfected an appeal as to the disability rating assigned. Thereafter, the veteran's file was transferred to the RO in Pittsburgh, Pennsylvania. In a June 2005 rating decision, the Pittsburgh RO increased the disability rating for bilateral hearing loss to 10 percent, effective June 1, 2004, based on a finding that the June 2004 rating decision contained clear and unmistakable error. The record reflects that the veteran was scheduled for a Travel Board hearing in May 2006; however, in correspondence dated and received in April 2006, he withdrew his hearing request. See 38 C.F.R. § 20.704(d) (2007). In September 2007, the Board remanded this case to the RO via the Appeals Management Center (AMC) in Washington, DC for further development. For reasons explained below, this appeal is once again REMANDED to the RO via the AMC. VA will notify the veteran if further action is required. REMAND In the September 2007 remand, the Board instructed the RO (via the AMC) to review the June 2005 rating decision, in light of the veteran's March 2004 VA audiological examination, and determine whether any corrective action was deemed necessary. Subsequently, the AMC issued a Supplemental Statement of the Case (SSOC) in December 2007. The SSOC notified the veteran that, based upon the results of his March 2004 VA audiological examination, his bilateral hearing loss warranted a 0 percent disability evaluation. See 38 C.F.R. §§ 4.85, 4.86(a) (2007). However, the SSOC went on to state that, despite the evidence of record providing a basis for entitlement to a noncompensable evaluation, the AMC was unable to establish entitlement to an initial evaluation in excess of 10 percent for the veteran's bilateral hearing loss. As a result, the AMC continued a compensable 10 percent rating for the veteran's bilateral hearing loss. In the Board's view, it is not clear whether the RO (via the AMC) took any corrective action as instructed by the September 2007 Board remand. Specifically, the RO should have considered the provisions of 38 C.F.R. § 3.105(a) in determining whether any corrective action (i.e., reversal or amendment based on clear and unmistakable error (CUE)) was necessary with regard to its June 2005 rating decision. See 38 C.F.R. § 3.105(a). "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has held that, 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. Another remand is therefore necessary to ensure proper compliance with the Board's September 2007 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, because the veteran has perfected an appeal of the initial (noncompensable) disability rating assigned for bilateral hearing loss, the Board has the ability to assign any rating deemed appropriate based on the facts found; however, to avoid any prejudice to the veteran, the Board feels that any corrective action deemed necessary should be initiated by the RO. This will allow the veteran to present argument regarding any action taken. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED for the following actions: 1. The RO should review the June 2005 rating decision, in light of the March 2004 VA audiological examination, and determine whether any corrective action (i.e., reversal or amendment based on clear and unmistakable error (CUE)) is necessary under 38 C.F.R. § 3.105(a). 2. To help avoid future remand, VA must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completion of the above actions, the RO should readjudicate the veteran's claim and issue him a new rating decision setting forth its decisions. If any determination remains unfavorable to the veteran, then he and his representative should also be provided with a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board for further review. The purpose of this REMAND is to ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted. The veteran has the right to submit additional evidence and argument on the matter or matters that 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 Supp. 2007). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).