Citation Nr: 1306959 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 08-11 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1979 to September 1989. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied service connection for right ear hearing loss and an increased rating for left ear hearing loss. In February 2011 a hearing was held before a Veterans Law Judge (VLJ) who has since retired. By a decision in June 2011 that judge reopened the claim of service connection for right ear hearing loss, and remanded for further action by the RO the matter of service connection for right ear hearing loss on de novo review and the matter of the rating for left ear hearing loss. An interim (October 2011) rating decision granted the Veteran service connection for right ear hearing loss, and assigned a 30 percent for [the now] bilateral hearing loss, effective June 19, 2006. This has not satisfied the Veteran's appeal (as he continues to seek an increased rating for the bilateral hearing loss). AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran was advised that the VLJ who conducted the hearing in this matter had retired, and was offered the opportunity for a hearing before the VLJ who would decide his appeal. The Veteran accepted the offer, and in July 2012 this matter was remanded for the scheduling of a travel Board hearing at the RO. Such hearing was held before the undersigned in September 2012; a transcript of the hearing is associated with the Veteran's claims file. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran was afforded a VA audiological evaluation in June 2011. At the Travel Board hearing before the undersigned he testified that his hearing acuity had worsened in the interim. He is competent to make such observation (as a layperson is capable of noting a diminution of hearing acuity). Accordingly, a contemporaneous examination to ascertain the current severity of his hearing loss disability is necessary. The case is REMANDED for the following: 1. The RO should arrange for an audiological evaluation of the Veteran (with audiometric studies) to determine the current severity of his bilateral hearing loss disability. The claims folder must be reviewed by the examiner in conjunction with the examination. The report of the examination should include comment by the examiner regarding the expected impact of the hearing loss found on occupational and everyday activity functioning. 2. The RO should then readjudicate the Veteran's claim for an increased rating. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant 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 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). _________________________________________________ GEORGE R. SENYK 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).