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).