Citation Nr: 1322806 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-05 712 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an Apri 2007 rating decision of a Regional Office of the Department of Veterans Affairs. In July 2009, the Veteran failed to report for a hearing scheduled with the Board. In August 2011, the Board denied an initial rating in excess of 10 percent for the service-connected bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision in October 2012, the Court vacated the Board's August 2011 decision and remanded the case for compliance with the terms of the Court's decision. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. Please note 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 being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the Memorandum Decision in October 2012, the Court noted that Board in its August 2011 decision stated that it considered the functional effects of the Veteran's bilateral hearing loss. However, the Court found that the Board failed to consider the May 2011 VA examiner's notation that the Veteran's bilateral hearing loss caused significant effects on his occupation. The Court found that the failure to discuss this evidence resulted in an inadequate statement of reasons and bases and was prejudicial error because it is possible that the functional effects of the Veteran's disability may entitle him to a referral for extraschedular consideration. In order to comply with the Court's remand instructions, a VA examination is necessary to fully evaluate the severity of the service-connected hearing loss. 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. As a component to the underlying claim for an initial increased (compensable) rating for the service-connected bilateral hearing loss, the RO should inform the Veteran of the requirements for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) and permit the Veteran an opportunity to supplement the record as desired. Any additional development should be undertaken as necessary 2. The RO then should have the Veteran scheduled for a VA audiological examination, to determine the current severity of his service-connected bilateral hearing loss. The examiner should review the claims file in conjunction with the examination and note such review in the examination report or in an addendum. The examiner should provide a full description of the functional effects of the Veteran's hearing loss on his employment and daily life. Particular emphasis should be placed upon any manifest functional effects or limitations of activity alleged by the Veteran. 3. After completing all indicated development, the RO should readjudicate the claim for an initial rating higher than 10 percent for the service-connected bilateral hearing loss, to include on an extraschedular basis pursuant to 38 C.F.R. §§ 3.321(b)(1) in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).