Citation Nr: 0814055 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-21 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from December 1959 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted an increased rating of 10 percent for bilateral hearing loss. A timely appeal was noted with respect to that rating. In February 2007, during the pendency of the veteran's appeal, the RO awarded an increased evaluation for bilateral hearing loss from 10 percent to 30 percent. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issue remains in appellate status. A hearing on this matter was held before the undersigned Veterans Law Judge sitting at the RO on February 13, 2008. A copy of the hearing transcript has been associated with the file. 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 During his February 2008 hearing, the veteran testified that his hearing loss has increased in severity since his last VA examination. He submitted a VA audiological evaluation conducted in February 2008, but the results were uncertified and a comment on the evaluation indicates that it is not adequate for rating purposes. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. See VAOPGCPREC 11-95 (1995). Here, the veteran has testified that his hearing loss has increased in severity. He is competent to report a worsening of his ability to hear. Further, the need for additional audiometric testing suggests that there may have been an increase in the severity of hearing pathology. Thus, the veteran should be scheduled for a new VA audiological examination in order to ascertain the current level of severity of his hearing loss. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), which altered the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as they pertain to increased rating claims. On remand the RO should provide corrective notice in accordance with Vazquez-Flores. Accordingly, the case is REMANDED for the following action: 1. Notify the veteran of the information and evidence necessary to substantiate his claim for an increased rating, to include the following: a. Evidence of the current worsening or severity of the disability and the effect that worsening has on the claimant's employment and daily life; b. General notice of the requirements of the applicable Diagnostic Code in the event that the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a notable worsening or increase in severity of the disability and the effect of that worsening on the claimant's employment and daily life (such as a specific measurement or test result); c. Notification that, in the event an increase in disability is 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 0 percent 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; and d. Examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. 2. Schedule the veteran for a VA audiology examination to determine the current severity of his hearing loss. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination and this should be acknowledged in the report. 3. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ THOMAS J. DANNAHER 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).