Citation Nr: 1300463 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 12-25 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty in the military from October 1956 to October 1958. This appeal to the Board of Veterans' Appeals (Board) is from a July 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida which granted service connection for bilateral (i.e., left and right ear) hearing loss and assigned a noncompensable rating. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). 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 The RO granted service connection for bilateral hearing loss in the July 2010 rating decision at issue; the Veteran's appeal is for a higher, i.e., compensable initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award, if it is shown there have been variances in the severity of the disability). The initial 0 percent rating was assigned effective from February 12, 2010, the date of receipt of his claim for this disability. Furthermore, in his Appeal to Board of Veterans Appeals (VA Form 9) received in August 2012, the Veteran reported that his hearing loss had worsened since the last examination. He has requested an updated examination. The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating) and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to update the list of the doctors and health care facilities that have treated him for his bilateral hearing loss. Obtain these additional medical treatment records (those not already on file). The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If the attempts to obtain these additional records are unsuccessful, and it is determined that further attempts would be futile, document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c)(1), (c)(2), (c)(3), and (e)(1). 2. Then schedule another VA audiological evaluation to reassess the severity of the Veteran's bilateral hearing loss in accordance with the applicable rating criteria, including speech discrimination testing (Maryland CNC) and to determine the resultant functional effects of this disability, including on his day-to-day activities and employment. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). All diagnostic testing and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail. The examiner must review the claims file for the pertinent medical and other history, including a complete copy of this remand. 3. Then readjudicate this claim for a higher rating for bilateral hearing loss in light of the additional evidence. If a higher rating for this disability is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). 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. 2012). _________________________________________________ K. Parakkal 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) (2012).