Citation Nr: 1031263 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-10 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for service-connected bilateral hearing loss, evaluated as 10 percent disabling prior to October 21, 2009, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Daniel Krasnegor - Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran appealed, and in February 2009, the Board, in part, denied the Veteran's claim for a rating in excess of 10 percent for bilateral hearing loss. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2010, the Court remanded the issue of an increased rating for bilateral hearing loss to the Board pursuant to a Joint Motion for Partial Remand (Joint Motion) that had been filed by the parties. The issue is now before the Board for review. In a January 2010 decision, the RO assigned a 20 percent disability rating for the Veteran's bilateral hearing loss, effective October 21, 2009. The Veteran was afforded a personal hearing before the undersigned in July 2008. A transcript of that hearing has been associated with the claims 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 In January 2010, the Court remanded the issue on appeal to the Board for compliance with the instructions in a Joint Motion, dated that same month. The Joint Motion essentially states that an August 2008 VA examination was not adequate for rating purposes, and that the Veteran should have been afforded another VA examination. The Joint Motion further appears to indicate that private audiometric test results, dated in July 2003 and May 2006, which contain only charted results, should be submitted for interpretation. Given the foregoing, the Veteran should be scheduled for a VA audiological examination to determine the current level of his hearing disability. The examiner should be requested to interpret the private audiometric test results, dated in July 2003 and May 2006, so that they can be applied to ratings criteria. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2009). The Board notes that the Veteran was afforded a VA audiological examination in November 2009. Nevertheless, the Board must comply with the Joint Motion and the Court's January 2010 Order. In its February 2009 decision, the Board stated that the Veteran had been afforded the opportunity for another hearing, which was scheduled to be held in January 2009, but that the Veteran had elected not to proceed with that hearing, and that his hearing request was considered to have been withdrawn. In April 2009, the Veteran submitted a statement indicating his disagreement with the determination that he had elected not to proceed with his January 2009 hearing, and he expressed frustration at not being able to appear before the Board. The Board has construed the Veteran's statement as a request for a new hearing. Therefore, on remand, the RO/AMC should send the appropriate forms to the Veteran for him to elect a Travel Board hearing, a videoconference hearing, a hearing before the Board in Washington, D.C., or to cancel his hearing request. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should afford the Veteran an audiological examination to determine the current nature and severity of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, to include obtaining the Veteran's auditory thresholds at frequencies of 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC tests. The claims folder must be made available to and reviewed by the examiner in conjunction with the scheduled examination, and the examiner must state in the evaluation report that he/she has reviewed the claims files. The examiner is requested to review the private audiograms, dated July 2003 and May 2006, and, in each case, to provide numerical results for the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, and to provide an opinion as to the current nature and severity of the Veteran's service-connected bilateral hearing loss. If the examiner cannot provide the numerical results for the specified puretone thresholds from either report, and/or the requested opinion, the examiner should explain the reasons therefor. 2. The RO/AMC should send the Veteran the necessary forms to afford him the opportunity to elect to testify before the Board, if he so chooses. 3. Following completion of the development requested in the first two paragraphs of this Remand, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2009). 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2009). _________________________________________________ T. STEPHEN ECKERMAN Acting 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) (2009).