Citation Nr: 1319694 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-20 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to a rating greater than 10 percent, from January 5, 2013, for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at an October 2012 hearing by the undersigned Veterans Law Judge (VLJ) held sitting at the RO. A transcript of that hearing is associated with the claims file. 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 Unfortunately, another remand is required. The Board remanded the case in December 2012 and requested that the RO obtain and associate with the claims file the audiological evaluation results referenced in an August 2011 VA audiology consultation report. The August 2011 VA audiology consultation report referred to the results of the hearing test conducted at that time, but the audiometric findings are not included in the record. On remand, the RO updated the Veteran's treatment records from VA Medical Center (VAMC) in Ann Arbor, Michigan, dated from August 2011 to March 2013. However, these records still do not include the audiometric results referenced in the August 2011 VA audiology consultation report. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). As this evidence is clearly relevant to the issue on appeal, it must be obtained before the Board can proceed with the merits of the claim. Thus, the case must be remanded again for the RO to obtain and associate with the claims file the audiological evaluation results referenced in the August 2011 VA audiology consultation report. 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. Obtain the August 2011 audiological evaluation results showing the audiometric findings as referenced in August 2011 VA audiology consultation report. Records should be obtained from the VAMC in Ann Arbor, Michigan. All records and/or responses received should be associated with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration any newly acquired evidence. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).