Citation Nr: 1307580 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-41 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a higher disability rating for hearing loss, currently evaluated as noncompensable. 2. Entitlement to a higher disability rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1959 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in September 2008, a statement of the case was issued in August 2009, and a substantive appeal was received in October 2010. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran is seeking a compensable rating for his service-connected hearing loss, and a rating in excess of 10 percent for his service-connected hypertension. The record shows that the Veteran failed to report for VA audio examinations in July 2006 and April 2010. The record also shows that the Veteran failed to report for his VA hypertension examination in April 2010. Such examinations are necessary to address the medical questions involved in this case. In a June 2011 and January 2013 Appellant's Brief, the Veteran's representative argued that the Veteran has experienced a worsening of impairment than currently contemplated by the assigned ratings, which may implicitly be a request for new examinations to determine the degree of worsening. Additionally, the Board notes that the Veteran has retained counsel as of November 2012, who has indicated that he will now be representing the Veteran. These filings suggest that the Veteran may in fact be actively pursuing his appeal, even though he has failed to appear for scheduled examinations. While the Board has considered proceeding with a decision on the merits without examinations since it appears that the Veteran has failed to cooperate, the Board believes it reasonable to offer the Veteran the opportunity for new examinations. The Board stresses to the Veteran, however, that he is under a duty to cooperate with the examinations which are being directed by VA to assist him with his appeal. The Veteran is further advised that when a claimant fails, without good cause, to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Accordingly, the case is REMANDED for the following: 1. The Veteran should be scheduled for appropriate VA examinations to determine the current severity of his hearing loss and hypertension. The claims folder must be made available to the examiners for review in conjunction with the examinations. Audiological examination findings should be reported to allow for evaluation of hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. Hypertension examination findings should be reported to allow for evaluation of hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. After completion of the above and any other development the RO may deem necessary, the issues on appeal should be readjudicated. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ ALAN S. PEEVY 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).