Citation Nr: 1316615 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-49 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to increases in the "staged" ratings (of 0 percent prior to July 29, 2010, and 10 percent from that date) assigned for the Veteran's bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for bilateral hearing loss, rated 0 percent, effective November 30, 2006 (date of claim). An October 2010 rating decision increased the rating to 10 percent, effective July 29, 2010 (date of VA audiology examination). The Veteran has not expressed satisfaction with the "staged" increased ratings, and both "stages" of the rating remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2011, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In November 2011 and June 2012 this matter was remanded for further development. In April 2012, the Veteran submitted additional evidence with a waiver of initial agency of original jurisdiction consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND As noted in the November 2011 and July 2012 Board remands, review of VA treatment records dated from November 2007 to July 2009 show that the Veteran might have undergone audiometry for treatment purposes in January 2008. Further, as noted in the July 2012 Board remand, the January 2008 VA treatment record indicates that a "comprehensive hearing eval [sic]" was one of the procedures completed on that date and it provides "test results" from that evaluation. It does not, however, include any audiometric threshold results from that evaluation. Hence, the RO was instructed to ascertain whether audiometric threshold results were completed, and if so, to obtain a copy of the audiometry report for the record. If a January 2008 audiometric evaluation was not completed, then the RO was to explicitly state so for the record. A close review of the record does not show that the RO has (as requested in the Board remands) attempted to ascertain whether there is an audiometry report available from January 2008. Pertinent VA treatment records are constructively of record, and must be secured. The November 2011 Board remand instructed that the Veteran be afford a new VA audiological evaluation and requested that the examiner interpret the findings (i.e., the puretone threshold results) reported in a November 2006 private audiometry report (submitted by the Veteran), and provide an explanation for any inconsistencies found when those results were compared to the findings reported in the May 2008, July 2010, and the current VA audiological evaluations. This was not accomplishded and, as noted in the July 2012 Board remand, on January 2012 VA audiological evaluation, the examiner noted that the Veteran's claims file (which includes a copy of the November 2006 private audiometry report) was not available for review. Also noted in the July 2012 Board remand, since the last VA audiological evaluation, the Veteran submitted a new private audiogram completed in March 2012, which must be addressed. Accordingy, the July 2012 remand instructed that the Veteran's claims file be forwarded to the January 2012 VA examiner (if available, to another audiologist, if not) for an updated medical opinion. This has not been accomplished. Regarding the November 2006 private audiometry report, the November 2011 and July 2012 Board remands also directed the RO's attention to the Court's holding in Savage v. Shinseki, 24 Vet. App. 259 (2011), and noted that when a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report cannot otherwise be obtained," VA has a duty to ask the private examiner to clarify the report, request that the claimant obtain the necessary information to clarify the report, or explain why such clarification was not needed. Because the Veteran had previously submitted a November 2006 private audiometry report, the RO was instructed to consider the applicability of Savage when readjudicating his increased rating claim. This has also not been accomplished. Finally, as noted in the July 2012 Board remand, additional VA treatment records (from August 2009 to February 2012) were associated with the record prior to the issuance of the most recent (March 2012) supplemental statement of the case (SSOC). These records include notations related to the Veteran's bilateral hearing loss disability, but were not identified or discussed in the March 2012 SSOC; due process requires that this evidence be returned to the AOJ for their review and disposition. 38 C.F.R. § 19.37. Because action ordered in the Board's prior Remands was not completed, this matter must be remanded, once again, for completion of the development sought (and readjudication). See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Furthermore, it is well-settled that when VA determines an examination or opinion is warranted it must provide one that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of any additional treatment or evaluation he has received for his bilateral hearing loss, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure private records of such treatment or evaluation. The RO should obtain complete records from all sources identified. The RO should (as was previously requested) specifically seek to obtain a copy of the Veteran's January 2008 VA audiometry report. (If such evaluation was not completed, it must be explicitly so noted for the record.) 2. The RO should then arrange for the Veteran's claims file to be forwarded to the January 2012 VA examiner (if available, to another audiologist, if not) for an updated medical opinion. The provider should (as was previously requested) review the Veteran's claims file, and interpret the puretone threshold testing results noted in the November 2006 and March 2012 private audiometry reports. If they are inconsistent with the findings on May 2008, July 2010, and January 2012 VA audiological evaluations, the examiner should reconcile them/comment on the reason for the inconsistency. If the examiner concludes that the opinion sought cannot be offered without another audiological evaluation of the Veteran, such should be arranged. The examiner must explain the rationale for all opinions. 3. The RO must then review the record (to include an initial review of all the evidence received since the March 2012 SSOC), ensure that all necessary development (with consideration given to Savage v. Shinseki, 24 Vet. App. 259 (2011)) is completed, and re-adjudicate the matter of the ratings assigned for the Veteran's bilateral hearing loss. If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then 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 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).