Citation Nr: 1323261 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 11-01 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2011, the Veteran and his brother testified at a Videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is of record. At the hearing, the Veteran submitted additional evidence accompanied by a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). 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 essentially contends that his service-connected bilateral hearing loss disability is worse than the noncompensable evaluation currently assigned indicates. He further asserts that his bilateral hearing loss disability presents an unusual or exceptional disability picture that his not contemplated by rating criteria for evaluation of a hearing loss disability. Specifically, he claims that the rating criteria does not account for the fact that he is unable to distinguish sounds in the presence of background noise. The Board initially notes that the Veteran's service-connected bilateral hearing loss disability was most recently evaluated during a December 2009 VA QTC examination. Unfortunately, the examiner did not include any discussion as any functional effects that the Veteran's bilateral hearing loss disability has on his occupation and/or daily activities. In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the United States Court of Appeals for Veterans Claims held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination. Therefore, the December 2009 VA QTC audiological examination is inadequate for rating purposes, and it is necessary to obtain a new VA examination to determine the nature and severity of the Veteran's service-connected bilateral hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). In addition, during the May 2011 Videoconference hearing, the Veteran testified that he needed to have his VA issued hearing aids adjusted on at least 2 prior occasions in 2011. The Veteran's statements of record predating his current May 2009 claim for increase indicate that he may receive VA audiological treatment at the Detroit VAMC. There are no VA treatment records associated with the claims file. Relevant VA treatment records must be obtained and associated with the claims folder as they are considered to be within VA's constructive possession and part of the record on appeal. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him an opportunity to identify or submit any additional pertinent evidence in support of his claim for a compensable evaluation for his service-connected bilateral hearing loss disability. Based on his response, if any, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless whether a response is received, relevant VA treatment records must be obtained from the Detroit VAMC and any other VA facilities dating since May 2008. If the RO/AMC cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the Veteran and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 2. Then, arrange for an audiological evaluation of the Veteran to evaluate the current severity of his bilateral hearing loss. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests and studies, including controlled Maryland CNC speech discrimination test and a puretone audiometry test, should be conducted, and the reports should be incorporated into the examination report. The examiner is also requested to provide an opinion concerning the functional effects of bilateral hearing loss, including on the Veteran's ability to work at any occupation for which he may be otherwise qualified. A complete rationale should be given for all opinions and conclusions expressed. 3. 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. 4. After the above has been completed, and following completion of any additional evidentiary development deemed appropriate, readjudicate the issue on appeal, to include consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). If any benefit sought remains denied, the Veteran and his representative 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 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 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). _________________________________________________ MICHAEL LANE 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).