Citation Nr: 1300830 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 11-06 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for left ear hearing loss and right ear hearing loss, respectively. The Veteran appealed with respect to the propriety of the initial assigned noncompensable rating for his bilateral hearing loss. In November 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is claiming that the severity of his bilateral hearing loss warrants a compensable evaluation. He was most recently afforded a VA audiological examination in May 2012, which showed that his bilateral hearing loss was considered not compensable under 38 C.F.R. § 4.85, Tables VI and VII. However, at the November 2012 Board hearing, the Veteran testified that the severity of his bilateral hearing loss had increased since the May 2012 examination. He reported that he could not understand what his wife says at times and that he had to watch television with the volume turned up loud. He also indicated that he had a hard time hearing in crowds and was considering getting hearing aids. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's hearing testimony, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's bilateral hearing loss. The Board also observes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims held that, as relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. As such, the VA examiner should be requested to comment on the functional effects the Veteran experiences as a result of his bilateral hearing loss. The examiner should also describe the impact that the Veteran's bilateral hearing loss has on his employability. The Veteran testified that he received treatment through VA for his bilateral hearing loss. A review of the Virtual VA claims processing system shows that VA treatment records dated through May 2012 have been associated with the Veteran's record. Therefore, while on remand, VA treatment records dated from May 2012 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records from the Connecticut VA Healthcare System dated from May 2012 to the present pertaining to his bilateral hearing loss. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his bilateral hearing loss. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests should be accomplished. The examiner should obtain 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 examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss. The examiner should also describe the impact that the Veteran's bilateral hearing loss has on his employability. Any opinion expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).