Citation Nr: 0812614 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-07 826 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to an initial compensable rating for the service- connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from November 1952 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 RO rating decision. The veteran testified before the undersigned Veterans Law Judge at a March 2008 hearing at the RO. At the hearing the veteran submitted an audiological evaluation with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. In April 2008 the undersigned Veterans Law Judge granted the motion of the representative for advancement of the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). The appeal is being 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 testified that his hearing had increased in severity since his April 2005 VA examination. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the RO should arrange for the veteran to undergo a VA audiological evaluation in order to determine the current severity of his bilateral hearing loss. In addition, the Board notes that that October 2006 audiological evaluation, which was submitted at the Board hearing with a waiver, is not adequate for rating purposes. Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (which holds that neither the Board nor the RO may interpret graphical representations of audiometric data). The veteran is hereby advised that failure to report to the scheduled examination(s) may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the veteran and death of an immediate family member. To ensure that all due process requirements are met, in addition to affording the veteran a medical examination, the RO should also give the veteran opportunity to present any additional information and/or evidence pertinent to the claim on appeal that is not already of record. The RO's notice letter should explain that the veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the veteran to submit all evidence in his possession that is not already of record, and ensure that its notice to the veteran meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate. In compliance with the recent decision of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the RO should notify the veteran that: (1) to substantiate such a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life; (2) if the diagnostic code under which he is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by him demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to him; (3) he must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). In addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. The veteran also should be informed that he may submit evidence to support his claim. The RO's letter should invite the veteran to furnish all evidence in his possession, and identify what evidence is ultimately his responsibility to obtain. The RO should ensure that its letter meets the requirements of the recent decisions in Dingess/Hartman v. Nicholson and Vazquez-Flores v. Peake, cited to above, as appropriate. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Based on the veteran's response, the RO should assist him in obtaining any additional evidence identified by him, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 3. The veteran should be afforded a VA examination to determine the current severity of the service-connected bilateral hearing loss. The claims file must be made available to the examiner(s), and the examination report(s) should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner's findings must be stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue on appeal should be reviewed in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran 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). _________________________________________________ STEPHEN L. WILKINS 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)