Citation Nr: 0814938 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-17 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from February 1972 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. 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 A September 2005 VA outpatient note reports an audiology evaluation was done which indicates bilateral sensorineural hearing loss. The results of the September 2005 audiometric testing are not included in the veteran's claims file and must be obtained. See 38 C.F.R. § 3.159(c)(2). The December 2005 VA examiner reports that her attempt at a valid audiometric study proved unsuccessful. Since the veteran's claim must be remanded to obtain additional VA medical records, the veteran should be provided a new VA audiometric examination. The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). The Board notes that the veteran should be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002). See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the case is REMANDED for the following action: 1. The RO should send a revised duty-to- assist notice regarding the claim for a higher rating for bilateral hearing loss. The notice letter must explain that evidence is required to demonstrate the worsening of the service-connected condition and the effect of that worsening on the claimant's occupational and daily life, or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for the condition (such as a specific measurement or test result). The notice letter should also provide examples of the types of medical and lay evidence that the veteran may submit that are relevant to establishing increased compensation. The veteran should then be afforded an appropriate period of time to respond. The RO should attempt to obtain any additional evidence identified by the veteran. 2. Obtain a copy of the September 2005 VA audiometric testing results. 3. The veteran should be scheduled for a VA audiometric examination. 4. Once the above actions have been completed, readjudicate the claim and issue a supplemental statement of the case. Then afford the veteran and his representative the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). _________________________________________________ MARY GALLAGHER 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).