Citation Nr: 1311990 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-00 397A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant served in the Illinois National Guard from March 1967 to November 1999 with various periods of active duty for training (ACDUTRA and inactive duty training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for the bilateral hearing loss, rated 0 percent, effective November 13, 2006. In September 2012, a Travel Board hearing was held before the undersigned. A transcript is associated with the record. 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 Veterans Claim Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the claimant in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). The appellant does not appear to have had any periods of federalized active duty service other than for training purposes. However, active duty service includes periods of ACDUTRA and INACDUTRA during which a service connected disability was acquired. See 38 C.F.R. §§ 3.6, 3.7. Here, the RO has not identified the period(s) of ACDUTRA or INACDUTRA when the appellant incurred his service-connected hearing loss and tinnitus. The record shows that the appellant was last examined by VA to evaluate his service-connected hearing loss disability in August 2007. In a November 2008 statement, he asserted (with August 2008 private audiometry report attached in support) that his hearing loss disability had worsened. In January 2010, he submitted a report of January 2010 audiometry in support of his contention that his hearing had worsened. Notably, the private audiometry studies submitted are not shown to have been conducted in accordance with governing regulatory criteria, and therefore, are inadequate for rating purposes. At the Travel Board hearing before the undersigned in September 2012, the appellant and his spouse testified that his hearing has progressively worsened over the past five years since the 2007 VA examination. While a layperson may not be capable of determining a specific level of hearing acuity (as by regulation that requires specified audiometric studies; see 38 C.F.R. § 4.85), a layperson (such as the appellant) is competent to observe a diminution in hearing acuity; and another layperson is capable of corroborating such increase in disability occurred. Consequently, the appellant and his spouse are competent to testify that his hearing acuity has decreased. Therefore, a contemporaneous examination to assess the appellant's hearing loss disability is necessary. Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The Board also notes that as this is an appeal from a rating assigned with a grant of service connection, "staged" ratings may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should review the record (including the certifications of the appellant's service, separation documents, and his 201 file), and identify the qualifying period(s) of service on which his awards of service connection for hearing loss and tinnitus are based. 2. The RO should then arrange for an audiological evaluation of the appellant (with audiometric studies) to determine the current severity of his bilateral hearing loss disability. The record must be reviewed by the examiner in connection with the examination. The examiner should elicit from the appellant information regarding the functional impairment that results from his hearing loss disability, and comment regarding the impact the veteran's hearing loss has on occupational and daily functioning. 3. The RO should then review the record and readjudicate the appellant's claim for an increased rating. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and his representative the opportunity to respond. The case should be returned to the Board. 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. _________________________________________________ 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).