Citation Nr: 1319301 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-28 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable initial rating for service connected bilateral hearing loss. ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active military duty from June 1964 to June 1966. The appeal comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2012, the Board denied service connection for tinnitus and remanded the appeal for a higher initial disability rating for hearing loss. In March 2013, the Veteran changed his representative from the New York State Division of Veterans Affairs to Warren J. Roth, Attorney at Law. He also submitted additional evidence and requested a hearing. In May 2013, VA notified the Veteran that his private attorney could not represent him because he was not accredited by VA. 38 C.F.R. § 14.629(b). He was given an opportunity to appoint another representative and clarify whether he desired another hearing. The letter also informed him that if he did not respond within 30 days his hearing request would be withdrawn and he would be presumed to be self represented. He has not responded to the May 2013 notice. The Veteran submitted additional evidence following the last adjudication by the agency of original jurisdiction (AOJ) in February 2013. He submitted an AOJ waiver of review in March 2013. The Board may consider the evidence in the first instance. 38 C.F.R. § 20.1304(c). A review of the Virtual VA paperless claims processing system shows that updated VA treatment records are available. The RO/AMC considered these updated records in the February 2013 supplemental statement of the case. 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 submitted a March 2013 letter from Dr. H.J., which stated that a contemporaneous audiogram was taken and enclosed with the letter. However, the audiogram is not of record. VA has a duty to obtain records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). Additional efforts must be made to locate the March 2013 audiogram taken by Dr. H.J. Id. The RO/AMC should review the March 2013 audiogram and determine whether it is compliant with 38 C.F.R. § 4.85. Savage v. Shinseki, 24 Vet. App. 259 (2011). The 38 C.F.R. § 4.85 requirements include: (i) a state-licensed audiologist conducting the audiogram, (ii) precise decibels for the puretone thresholds for each ear at frequencies (500, 1000, 2000, 3000, and 4000 Hertz), and (iii) Maryland CNC speech discrimination test results. If it is unclear whether March 2013 audiogram complies with 38 C.F.R. § 4.85, conduct appropriate development for clarification. Savage, supra. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete an authorization for the release of the March 2013 audiogram from Dr. H.J. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. If a private audiogram is obtained, review it for compliance with 38 C.F.R. § 4.85, which requires the following: (i) a state-licensed audiologist conducting the audiogram; (ii) precise decibels for the puretone thresholds for each ear at frequencies (1000, 2000, 3000, and 4000 Hertz); and (iii) Maryland CNC speech discrimination testing. If the private audiogram is unclear as to whether any of the 38 C.F.R. § 4.85 requirements are met, conduct any appropriate development for clarification. 3. After the above has been completed, and following completion of any additional evidentiary development deemed appropriate, readjudicate the issue on appeal. If any benefit sought remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and given an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ J. A. MARKEY 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).