Citation Nr: 0811912	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  06-10 741A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased compensable disability rating for 
bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel


INTRODUCTION

The veteran had active service from June 1966 to April 1970.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a September 2005 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO), 
located in Waco, Texas, which denied the above claim.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action is required.


REMAND

In several statements, the veteran and his representative 
report that his hearing loss has worsened since the most 
recent examination, which was conducted in August 2005.  As 
such, VA is required to afford him a contemporaneous VA 
examination to assess the current nature, extent and severity 
of his left shoulder disability.  See Palczewski v. 
Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 
Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 
60 Fed. Reg. 43186 (1995).  Thus, the Board has no discretion 
and must remand this claim.  

Finally, the veteran should be provided with a letter 
regarding VA's duties to notify and assist that complies with 
the directives of the United States Court of Appeals for 
Veterans Claims in Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC shall provide the veteran 
with a letter that:
*	informs him about the information and 
evidence not of record that is 
necessary to substantiate his claim; 
*	informs him about the information and 
evidence that VA will seek to 
provide; 
*	informs him about the information and 
evidence he is expected to provide; 
*	requests him to provide any evidence 
in his possession that pertains to 
his claim.  
*	advises him of the criteria for 
establishing a disability rating and 
effective date of award; 
*	notifies him that, to substantiate 
his claim, he must provide, or ask 
the Secretary to obtain, medical or 
lay evidence demonstrating a 
worsening or increase in severity of 
his bilateral hearing loss and the 
effect that worsening has on his 
employment and daily life;  
*	provides him with the appropriate 
Diagnostic Codes for rating bilateral 
hearing loss; and 
*	notifies him that, should an increase 
in disability be found, a disability 
rating will be determined by applying 
relevant Diagnostic Codes, which 
typically provide for a range in 
severity of a particular disability 
from noncompensable to as much as 100 
percent (depending on the disability 
involved), based on the nature of the 
symptoms of the condition for which 
disability compensation is being 
sought, their severity and duration, 
and their impact upon employment and 
daily life.

2.  The RO/AMC shall contact the veteran 
and provide him the opportunity to submit 
any additional evidence in his possession 
in support of his claim.  Should the 
veteran identify any private medical 
records which must be obtained, any 
necessary release forms should be secured 
in order to obtain the identified 
evidence.

3.  The RO/AMC shall make arrangements 
with the appropriate VA medical facility 
for the veteran to be afforded an 
audiometric examination to determine the 
nature and severity of his service-
connected bilateral hearing loss.  The 
evaluation should be in accordance with 
the criteria delineated in 38 C.F.R. § 
4.85 and should include testing of pure 
tone criteria at 1,000, 2,000, 3,000, and 
4,000 Hertz and speech recognition scores 
using the Maryland CNC Test.  All findings 
should be recorded in detail.  

4.  The RO/AMC should then readjudicate 
the veteran's claim.  If the benefit 
sought on appeal remains denied, the 
veteran and his representative should be 
provided with a Supplemental Statement of 
the Case, containing notice of all 
relevant actions taken on the claim, to 
include a summary of the evidence and 
applicable law and regulations considered 
pertinent to the issues currently on 
appeal.  An appropriate period of time 
should be allowed for response.

Thereafter, the case is to be returned to the Board, 
following applicable appellate procedure.  The veteran need 
take no action until he is so informed.  He has the right to 
submit additional evidence and argument on the matter or 
matters the Board has remanded to the RO.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  The purposes of this remand 
are to obtain additional information and comply with all due 
process considerations.  No inference should be drawn 
regarding the final disposition of this claim as a result of 
this action. 

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).

_________________________________________________
STEVEN D. REISS
Acting 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) (2006).