Citation Nr: 1315852 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-06 516 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to an initial, compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from April 19, 1985 to February 21, 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he also had 3 years and 18 days of active service prior to April 19, 1985. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO in St. Louis, Missouri, inter alia, granted service connection and assigned an initial noncompensable rating for bilateral hearing loss, effective March 25, 2007. In March 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Los Angeles, California, which has certified the appeal to the Board. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for bilateral hearing loss, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In September 2010, the Veteran testified during a Board hearing before a Veterans Law Judge at the RO. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In November 2010, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in a November 2011 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. In January 2012, the Board wrote the Veteran to inform him that the Veterans Law Judge who conducted the hearing in September 2010 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. He responded in February 2012, indicating that he would like to have another Board hearing at the RO. In March 2012, the Board remanded the claim on appeal to the RO in order to schedule the requested hearing. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the June 2012 hearing, the Veteran requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claim. Thereafter, the Veteran submitted additional evidence to the Board, waiving initial RO consideration of the evidence. In October 2012, the Board remanded the claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in a February 2013 SSOC) and returned this matter to the Board for further appellate consideration. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in October 2012, the Board referred a claim for service connection for a single disability manifested by hearing loss, tinnitus, and vertigo, such as Meniere's disease, and a claim for service connection for vertigo as secondary to hearing loss, to the RO for appropriate action. Thus far, it does not appear from the record before the Board that the RO has completed action on those claims. As such, those matters are not properly before the Board. REMAND Unfortunately, the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the October 2012 remand was not fully completed. In the October 2012 remand, the Board instructed the RO, inter alia, to obtain from the VA Medical Center (VAMC) in Loma Linda, California, more detailed audiometric data associated with VA outpatient testing performed on September 17, 2008, and June 27, 2012, inasmuch as the related progress notes contained instructions for viewing such electronically. (More specifically, both progress notes indicated that further data, including audiograms, could be reviewed by clicking on "Tools" in the drop-down menu in CAPRI.) After that and other development had been completed, the RO was to arrange for the Veteran to undergo a VA examination (with appropriate testing), by an Ear, Nose and Throat (ENT) physician or audiologist, at a VA medical facility. Among other things, the examiner was to translate any graphical displays of audiometric testing results that had not been converted to an appropriate numerical form; including with respect to the VA audiometric testing that had been conducted in June 2012 (if not otherwise of record). A review of the claims file does not reflect that the agency of original jurisdiction (AOJ) (here, the RO, via the AMC) made any efforts to obtain and associate with the claims file the additional data associated with VA outpatient testing performed on September 17, 2008, and June 27, 2012 (which, as noted, is indicated in the progress notes to be accessible via the "Tools" drop-down menu in CAPRI). Rather, the AOJ associated with the claims file copies of the September 17, 2008, and June 27, 2012 progress notes; both of which were already of record at the time of the Board's remand in October 2012. As for the request for an examination, the claims file reveals that the Veteran was afforded a new examination by an audiologist in November 2012, and that the audiologist did, in fact, translate graphical displays of audiometric data into appropriate numerical form. However, in so doing, the audiologist reported that, on VA outpatient testing on June 27, 2012, the Veteran was found to have speech discrimination scores of 88 percent, bilaterally. Notably, none of the clinical records or other evidence in the claims file supports the examiner's observation in that regard. Whether the examiner made an error in reporting the speech discrimination scores for June 27, 2012 (the Board notes that the Veteran's speech discrimination scores on testing in November 2012 were 88 percent, bilaterally), or whether the examiner had access to speech discrimination data from June 27, 2012 that was not otherwise included the claims file (viewed, for example, via the "Tools" drop-down menu in CAPRI), is unclear. Accordingly, the RO should obtain from the Loma Linda VAMC all additional, relevant data associated with VA outpatient audiometric testing performed on September 17, 2008, and June 27, 2012; to particularly include any additional, relevant data that can be electronically accessed by clicking on "Tools" in the drop-down menu in CAPRI, as indicated in the progress notes from those dates. Thereafter, if the expanded record contains no speech discrimination data corresponding to VA outpatient testing on June 27, 2012, the Veteran's claims file should be forwarded to the VA audiologist who examined the Veteran in November 2012. The audiologist should be asked to prepare an addendum report indicating the basis for her November 2012 report that, on VA outpatient testing on June 27, 2012, the Veteran was found to have speech discrimination scores of 88 percent, bilaterally. More specifically, the audiologist should be asked to indicate what the source of that data was or, in the alternative, to indicate whether those scores were reported in error. The Board also notes that records of the Veteran's treatment through the Loma Linda VAMC were last associated with the Veteran's claims file on October 23, 2012. Hence, more recent medical records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, in addition to the records previously noted, the RO should also obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran's bilateral hearing loss since October 23, 2012. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. On remand, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. As indicated, the RO's adjudication of the claim must include consideration of all pertinent evidence added to the claims file since the last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. Obtain from the Loma Linda VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran's bilateral hearing loss since October 23, 2012, and all additional, relevant data associated with VA outpatient audiometric testing performed on September 17, 2008, and June 27, 2012; to particularly include any additional, relevant data that can be electronically accessed by clicking on "Tools" in the drop-down menu in CAPRI, as indicated in the progress notes from those dates. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. If, after all records and/or responses received from each contacted entity have been associated with the claims file, the claims file contains no speech discrimination data corresponding to VA outpatient testing on June 27, 2012, forward the Veteran's entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA, to the VA audiologist who examined the Veteran in November 2012 for an addendum report. The audiologist should provide the basis for her November 2012 notation that, on VA outpatient testing on June 27, 2012, the Veteran was found to have speech discrimination scores of 88 percent, bilaterally. More specifically, the audiologist should identify the source of that data, or, in the alternative, indicate whether those scores were reported in error. The audiologist should set forth all findings, along with a complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).