Citation Nr: 1313623 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-20 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial (compensable) rating for bilateral hearing loss. 2. Entitlement to an increased rating for residuals, injury, lumbar spine, lumbosacral strain and anterolisthesis of L4-L5 and degenerative disc disease (DDD) of lumbar spine, currently evaluated as 10 percent disabling. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for radiculopathy of the lower extremities. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served 20 years of active duty service and retired in September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and June 2010 rating decisions. In March 2008, the Cleveland, Ohio Tiger Team granted service connection for bilateral hearing loss, and awarded a noncompensable rating, effective December 14, 2006. The Veteran disagreed with the noncompensable rating. The United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, the claim is still in appellate status. By rating decision of June 2010, the St. Petersburg, Florida RO denied an increased rating for residuals, injury, lumbar spine, lumbosacral strain and anterolisthesis of L4-L5 and DDD of lumbar spine and decided that new and material evidence had not been submitted to reopen the claim for service connection for radiculopathy, lower extremities. No statement of the case (SOC) regarding these matters has been furnished to the Veteran. As such, the claim must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on these issues. Manlincon v. West, 12 Vet.App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet.App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet.App. 124, 130 (1996). Jurisdiction sits with the St. Petersburg, Florida RO. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. 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 asserts that his bilateral hearing loss and lumbar spine disabilities are more severe than currently rated. He also maintains that he has submitted sufficient evidence to reopen the claim for service connection for radiculopathy, lower extremities. In support of his claim for an increase for bilateral hearing loss, the Veteran has submitted private audiological treatment records from First Coast Hearing Clinic. The April 2010 report was from First Coast Hearing Clinic. It is not clear who rendered the February 2013 report. Both were shown on graph findings. Additionally, the February 2013 audiological report is not clear as to word recognition findings. Pursuant to 38 C.F.R. § 4.85(a) an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. In Savage v. Shinseki, the Court held that, "in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports, or the Board must explain why such clarification is not necessary." 24 Vet.App. 259, 260 (2011). As such, further clarification is needed as to his April 2010 and February 2013 private audiological reports to ensure compliance with the standards of § 4.85(a). Id. Additionally, the Veteran testified at a Travel Board hearing before the undersigned VLJ in February 2013. During that hearing, the Veteran testified that his hearing had worsened since his last VA examination in July 2010. He also complained about his July 2010 VA audiology examination, indicating that he did not feel it was adequate. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet.App. 377 (1994). The VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Finally, the Veteran claimed an increased rating for his lumbar spine disability and indicated that he had submitted new and material evidence sufficient to reopen his claim for radiculopathy, lower extremities. By rating decision of June 2010, both of these claims were denied. In November 2010, the Veteran filed a notice of disagreement (NOD) on behalf of both claims. These issues were not reflected in a statement of the case (SOC). Under the circumstances, the Board has no discretion to move forward with these claims and is obliged to remand these issues for issuance of a SOC. Manlincon v. West, 12 Vet.App. 238, 240-41 (1999). 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. Contact the private audiological treatment provider of April 2010, First Coast Hearing Clinic, and contact the Veteran and determine who performed the February 2013 private audiological hearing test. Thereafter, contact both clinics and determine if these evaluations were performed by a state-licensed audiologist. 2. The Veteran should undergo a VA audiological examination by an examiner who has not examined him before to determine the severity of his bilateral hearing loss. All indicated studies should be performed. The VA examiner should also be asked to interpret the April 2010 and February 2013 private graph reports in terms of puretone thresholds in decibels, in frequencies 1000, 2000, 3000, and 4000 hertz. Speech recognition scores performed with the Maryland CNC word lists should also be provided in the appropriate percentages. The examiner should also be asked whether the Veteran's hearing loss results in a marked interference with employment. 3. The Veteran MUST be furnished an SOC on the issues of entitlement to an increased rating for residuals, injury, lumbar spine, lumbosacral strain and anterolisthesis of L4-L5 and DDD of lumbar spine and whether new and material evidence has been submitted to reopen the claim for service connection for radiculopathy, lower extremities. The SOC must addresses all pertinent evidence, laws and regulations relevant to his claims in compliance with the holding in Manlincon v. West as discussed above, and in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or the withdrawal of the Veteran's NOD. If the Veteran perfects an appeal by timely submitting a substantive appeal, the matter should be returned to the Board for further appellate review. If the initial increased rating for bilateral hearing loss claim remains denied, a supplemental statement of the case (SSOC) should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).