Citation Nr: 0812166	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  08-02 079	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUE

Entitlement to an increased compensable rating for bilateral 
hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1969 to August 
1971.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a  July 2007 rating decision issued by 
the Department of Veterans Affairs (VA) Newark, New Jersey 
Regional Office (RO) which, in part, continued a 
noncompensable rating for bilateral high frequency sensor 
neural hearing loss.

The veteran provided testimony in support of his appeal at a 
videoconference hearing before the undersigned at the RO in 
March 2008.  A transcript of that hearing is of record.

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

The veteran is entitled to a new VA examination where there 
is evidence (including his statements) that the condition has 
worsened since the last examination.  Snuffer v. Gober, 10 
Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 
(1994); VAOPGCPREC 11-95 (1995).

The veteran last underwent a VA audiological examination in 
January 2007.  The results of the veteran's audiological 
examination did not meet the criteria for a compensable 
evaluation.  38 C.F.R. § 4.85 (2007).

In February 2008 the veteran underwent an audiological 
examination at the Somerset Ear Nose & Throat Associates.  
The results of this audiological examination would appear to 
meet the criteria for a 10 percent evaluation; but it is 
unclear whether this evaluation was conducted in accordance 
with VA guidelines.  Martinak v. Nicholson, 21 Vet. App. 447 
(2007); 38 C.F.R. § 4.85.  The February 2008 examination does 
indicate a worsening in the veteran's hearing.

As stated above, a veteran is entitled to a new VA 
examination where there is evidence that the condition has 
worsened since the last examination.  Id.  The veteran's 
statements and the February 2008 private audiological 
examination demonstrate that the veteran's condition has 
worsened.

A new VA examination is needed to determine the current 
severity of the veteran's bilateral hearing loss in 
compliance with the regulations of 38 C.F.R. § 4.85.

Accordingly, the case is REMANDED for the following action:

1.   Provide the veteran with a VA 
audiological examination to determine the 
severity of his service-connected 
bilateral hearing loss.

2.  Then re-adjudicate the claim.  If any 
claim on appeal remains denied, issue a 
supplemental statement of the case before 
returning them to the Board, if otherwise 
in order.

The appellant has the right to submit additional evidence and 
argument on the matter or matters 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).


_________________________________________________
Mark D. Hindin
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).