Citation Nr: 1036624 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 07-36 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. This duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Where the available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In this case, the Veteran last underwent a comprehensive VA examination of his service-connected bilateral hearing loss in November 2005. In a November 2007 Appeal to the Board and a July 2010 hearing before the Board, the Veteran stated that his bilateral hearing loss had increased in severity since November 2005. The Board therefore concludes that an additional VA examination is needed to provide a current picture of the service-connected bilateral hearing loss disorder at issue on appeal. 38 C.F.R. § 3.327 (2009). In addition, in the July 2010 hearing before the Board, the Veteran stated that he had last had an audiological examination one or two years before. He reported that following that examination, the examiner told him that his hearing loss had increased in severity and he was recommended hearing aids. The medical records corresponding to this audiological examination are not currently associated with the claims file. Accordingly, an attempt must be made to obtain these records and any other relevant medical records that are not currently associated with the claims file. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for his service-connected bilateral hearing loss. An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of all pertinent treatment records identified by him in response to this request which have not been previously secured, to specifically include the medical records identified by the Veteran in the July 2010 hearing before the Board. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts to obtain named records, such records cannot be obtained, the Veteran must be notified and (a) the specific records that cannot be obtained must be identified; (b) the efforts that were made to obtain those records must be explained; (c) any further action to be taken by VA with respect to the claims must be noted; and (d) the Veteran must be notified that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an additional VA audiological evaluation to determine the current severity of his bilateral hearing loss. All pertinent symptomatology and findings must be reported in detail. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. Specifically, the findings of puretone decibel loss at 1000, 2000, 3000 and 4000 Hertz, must be numerically reported and speech recognition must be derived using the Maryland CNC Test. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. The RO must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ ROBERT E. SULLIVAN 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).