Citation Nr: 1316771 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-47 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective from June 17, 2008. In March 2011, the Board issued a decision denying a compensable disability rating for the Veteran's service-connected hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and, in an August 2012 Memorandum Decision, the Court set aside the Board's decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that the current noncompensable disability rating does not accurately portray his hearing loss. He states that his quality of life with his family is not the same and that he loses much of the conversation around him even with his hearing aids. He indicated that his hearing impairment was "beyond the point where he needs aids every day." He appears to assert that his hearing impairment is exceptional and unusual such that he warrants at least a 30 percent disability rating. See Lay Statement from Veteran dated February 2011. In the above-mentioned Memorandum Decision, the Court determined that the Board did not adequately fulfill its obligation to provide a statement of reasons or bases for its decision to the extent that it applied the criteria for an increased disability rating on an extraschedular basis. The Court referred to evidence contained in the claims file indicating the Veteran's hearing aids would not eliminate communication in certain adverse listening situations (noise, speaker at a distance, and reverberant surroundings.) See VA Audiology Note dated February 1, 2011. The Court also referred to the Veteran's own assertions that his hearing aids are not the best as he cannot control the volume. See Lay Statement from Veteran dated February 2011. It was also suggested that there was a question as to the impact of the Veteran's service-connected hearing loss on his decision to retire. Unfortunately, there is little in the claims file which adequately describes the current nature and extent of the Veteran's hearing loss disability. Review of the claims folder reveals that he has not been afforded a pertinent VA examination since February 2009, more than 4 years ago. Indeed, the principal purpose of that examination was to determine the etiology of any diagnosed hearing loss-in other words to determine whether service connection was warranted. Moreover, the Board notes that the Veteran is competent to provide evidence as to the severity of his symptoms. See 38 C.F.R. § 3.159(a)(2) (2012). As there may have been significant changes in the service-connected hearing loss since the previous examination, and to ensure that the Veteran's own complaints are sufficiently considered by a VA examiner, the Board finds that a more contemporaneous examination is needed. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the 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 examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of his present hearing loss, as well as any significant pertinent interval medical history since his last VA examinations in 2009. See generally, Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA audiology examination must include the effect of the veteran's hearing loss disability on occupational functioning and daily activities). Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in February 2013. Finally, the Board observes that the Veteran is appealing the original assignment of the disability rating for his service-connected hearing loss following the award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings-that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Thus, the disability evaluation must be considered from June 17, 2008 to the present. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any medical records, not already in the claims file, pertaining to treatment or evaluation of his service-connected hearing loss since February 2013, or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. Thereafter, the Veteran should be referred for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. The claims folder must be made available to the examiner in conjunction with the examination. A notation to the effect that this record review took place should be included in the report of the examiner. a) The audiologist should provide numeric interpretation of the hearing tests/audiograms conducted. He/She should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz and then provide the average pure tone threshold for these four frequencies. A Maryland CNC Test must also be administered to determine speech recognition scores. The reported numeric values and speech recognition scores must be in conformity with the requirements of 38 C.F.R. § 4.85. b) The audiologist must also describe the effects of the Veteran's service-connected bilateral hearing loss on his occupational functioning and activities of daily living. In doing so, he/she should indicate, whether there are exceptional or unusual circumstances, peculiar to this Veteran's hearing loss, which are not adequately capture by the rating schedule. In other words, the examiner should address whether does the Veteran has significant hearing dysfunction that still does not meet the schedular criteria for a compensable hearing loss rating under DC 6100. The basis for the conclusions reached should be stated in full, and any opinion(s) contrary to those already of record should be reconciled, to the extent possible. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to an initial compensable disability rating for the service-connected bilateral hearing loss. If there is evidence that the rating schedule does not adequately address the nature of the Veteran's service-connected hearing loss, submit the claim to the Director, Compensation and Pension Service, for extraschedular consideration, in accordance with 38 C.F.R. § 3.321(b). If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO 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 Court. 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).