Citation Nr: 1306807 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-31 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable evaluation, for the period prior to July 30, 2012, and an evaluation in excess of 20 percent disabling, for the period beginning July 30, 2012, for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to September 1954, including combat service in the Republic of Korea, and his decorations include the Purple Heart Medal, Bronze Star Medal, and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. This case was previously before the Board in July 2012 when it was remanded for additional development. In a December 2012 rating decision, the RO increased the evaluation of the Veteran's bilateral hearing loss disability to 20 percent disabling effective July 30, 2012. Although each increase represents a grant of benefits, a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. 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, DC. VA will notify the appellant if further action is required. REMAND The Veteran has reported that he underwent hearing testing at the VA Medical Center in Houston, Texas, in March 2010. Review of the claims file reveals a VA treatment record dated in March 2010 that provides a summary of the audiological assessment. This record indicates that the testing undergone was patient history, ear canal inspection, tympanogram, acoustic reflex, and comprehensive hearing evaluation. The assessment was bilateral mild to profound sensorineural loss. The prognosis was slight decrease since 2007 and under "Plan" it was reported that the results were to be scanned into the medical records. A subsequent VA medical record indicates that the report was scanned and that it could be accessed through VISTA; however, the note included no further information. Results of any pure tone threshold and/or speech audiometry testing that may have been conducted in March 2010 have not been associated with the claims file. In a remand dated in July 2012 the Board requested that all VA treatment records dated since March 2010 be obtained and associated with the claims file. The records reveal the same note indicating that the report was scanned. Based upon the Veteran's statement that he underwent audiological evaluation in March 2010, the indication that the Veteran underwent a "comprehensive hearing evaluation," the assessment was a slight decrease in hearing since 2007, and the indication that the report was scanned into VISTA, it is unclear whether the results associated with the claims file in March 2010 represent all of the assessment data, and in particular, results from any pure tone threshold and/or speech audiometry testing performed The Board notes that there are similar entries regarding scanned results of audiological assessments associated with the claims file dated April 11, 2007, and April 18, 2007. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain complete the scanned results of the Veteran's audiological assessments dated in April 2007 and March 2010, including the results of any pure tone threshold and/or speech audiometry testing performed. Any additional development warranted in light of any records obtained as well as the previous evidence of record also must be completed on remand so that adjudication can proceed without further delay. Particularly, arrangements must be made concerning any additional medical examination and/or opinion deemed necessary. 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. Attempt to obtain and associate with the claims file the scanned results of the April 11, 2007, April 18, 2007, and March 2010 audiological assessments that are available through VISTA, including the results of any pure tone threshold and/or speech audiometry testing performed. 2. Review the claims file and undertake any additional records development indicated. This shall include obtaining and associating with the claims file updated VA treatment records, if any, regarding the Veteran. This also shall include obtaining and associating with the claims file, after securing any necessary authorization, additional pertinent records identified by him during the course of this remand. This lastly (after the completion of all records development) shall include arranging for an additional medical examination and/or opinion if, and only if, necessary based on any new records obtained as well as the previous evidence of record. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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. 2012). _________________________________________________ MILO H. HAWLEY 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).