Citation Nr: 1309558 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-20 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his son, and his ex-spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1963 to July 1966. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying a compensable evaluation for the Veteran's service-connected right ear hearing loss. In October 2008, the Veteran, his son and his ex-wife testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. REMAND The Veteran, through his authorized representative at the October 2012 hearing before the undersigned, has argued that he was granted service connection for bilateral hearing loss in a January 1968 decision, and that this was subsequently erroneously treated by the RO as if service connection was only established for right ear (unilateral) hearing loss. A review of that rating decision reveals that, as the representative has pointed out, the term "combined deafness" is used. However, that January 1968 RO rating decision and the context of that rating decision make clear that the combined deafness referred to reflects a combination of conditions affecting the right ear. Specifically, in his original claim in September 1967 the Veteran complained of buzzing in the right ear. The notes upon VA general examination in November 1967, as well as the findings upon VA audiology examination in January 1968 VA, reflect complaints and findings of two hearing difficulties in the right ear: the noted buzzing, and some audiologically identified hearing impairment. The buzzing was noted in the medical notes upon the November 1967 examination. Audiometric testing and the audiologist's findings in January 1968 clarify that hearing loss was then present in the right ear, but not the left ear. The January 1968 rating decision notes buzzing in the right ear and that the right ear is "not normal," but made no such findings in reference to the left ear, and indeed did not identify any difficulty with the left ear. The Board does not find that the RO granted service connection for hearing loss in the left ear in its January 1968 rating action. In a September 2010 rating decision, reopening of the Veteran's claim for service connection for left ear hearing loss disability was denied. The Veteran did not appeal that decision. However, the Board has determined that the testimony and argument provided at the October 2012 Board hearing raise the issue of whether new and material evidence has been presented to reopen the claim for service connection for left ear hearing loss disability. This issue is inextricably intertwined with the claim for increased rating for service-connected right ear hearing loss now before the Board, because the rating to be assigned for the right ear hearing loss critically turns on whether hearing loss in one or both ears is service connected. 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). The Court has held that a claim which is inextricably-intertwined with another claim which remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake all indicated development and then adjudicate the issue of whether new and material evidence has been presented to reopen the claim for service connection for left ear hearing loss disability and if so whether the reopened claim should be granted. The Veteran must be informed of his appellate rights with respect to this new issue. 2. The RO or the AMC should also undertake any indicated development and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a Supplemental Statement of the Case and an appropriate opportunity to respond before the case is returned to the Board for further appellate action.. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).