Citation Nr: 1320582 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-11 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to April 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for bilateral hearing loss and assigned a 10 percent disability rating, effective November 25, 2008. In December 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran and his representative indicate that the Veteran's hearing has worsened since his last VA examination. Board Hearing Tr. at 5-6; see also VA Form 9 received from the Veteran April 28, 2011; DAV Appeal Pre-Certification Review dated November 16, 2011. The Veteran further testified that a doctor at Sears performed a hearing test and told him that his right ear was completely deaf. Board Hearing Tr. at 6. In addition, there is medical evidence suggesting a worsening of the Veteran's bilateral hearing loss. Specifically, the diagnosis after the Veteran's April 2009 VA audiological examination included within normal limits to mild sensorineural hearing loss left ear. After a subsequent August 2010 VA audiology consultation, which included a hearing test, the diagnosis was mild to moderate sensorineural hearing loss left ear. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral hearing loss. Ongoing VA medical records should also be obtained. See 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 the material could be determinative of the claim). The Veteran testified that he currently receives VA treatment from the VA Medical Center in Castle Point, New York. Treatment records from that facility have only been obtained through September 17, 2010. As noted above, the Veteran reported having a hearing test performed at Sears. On remand, he should be asked to provide authorization for VA to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records from the Castle Point VAMC dating since September 2010. 2. Ask the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records from Sears. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 3. After the above has been accomplished to the extent possible, schedule the Veteran for a VA audiological examination to determine the extent of his bilateral hearing loss. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. The examination must include pure tone threshold (in decibels) and Maryland CNC testing. The examiner should address the functional effects of bilateral hearing loss on daily life and social and occupational functioning. 4. Then, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran 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 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). _________________________________________________ Laura H. Eskenazi 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).