Citation Nr: 1321649 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 11-02 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to October 13, 2011. 2. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had active service from March 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for bilateral hearing loss and assigned a noncompensable (0%) disability rating effective September 2008, the date of claim for service connection. Subsequently, a 10 percent disability rating was assigned effective October 13, 2011, the date of the VA examination showing an increase in disability. The claim remains in controversy because the rating is less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2013, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. This appeal contains a hybrid record; part is in a physical claims folder and part is in the Virtual VA paperless claims processing system. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claims for a higher initial rating for bilateral hearing loss. The Veteran underwent the most recent VA audiology Compensation and Pension examination in October 2011 to evaluate the severity of his hearing loss. However, the Veteran testified at the February 2013 videoconference hearing that he last had his hearing tested at the Erie VA Medical Center (VAMC) two to three weeks prior to the hearing. In April 2013 the Board remanded the case to obtain the records. The records obtained revealed that the Veteran had an audiology evaluation in December 2012 at which time his right hearing aid was found to be not working. New hearing aids were ordered and a January 2013 record reveals that they were delivered and fitted at that time. However, the December 2012 specifically indicates "pure-tone and speech audiometry: please see CPRS Audiogram." The Board has reviewed the electronic copies of the VA medical records obtained and the referenced audiogram is not contained in these records. Moreover, such an audiogram would contain the specific data contemplated by the rating criteria. Another attempt to obtain the referenced records must be made. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO must obtain all VA treatment records from the Erie, Pennsylvania VAMC. Specifically a copy of the Audiogram referenced in the December 10, 2012 Audiology Note must be obtained. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2012) regarding requesting records from Federal facilities. Any other sources of treatment records identified by the Veteran should also be contacted. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2012). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should also undertake any other development it determines to be indicated, which may include ordering an additional Compensation and Pension examination. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).