Citation Nr: 1324689 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 04-06 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, currently rated as 10 percent disabling. 2. Entitlement to service connection for loss of use of the right foot. 3. Entitlement to automobile and adaptive equipment, or adaptive equipment only. 4. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to March 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2003 (regarding hearing loss), January 2004 (regarding loss of use of the right foot and for automobile and adaptive equipment, or adaptive equipment only), and May 2005 (regarding specially adapted housing) rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in January 2011 and September 2012. In September 2012, the Board denied the Veteran's claim for an increased initial rating for PTSD, and remanded the remaining issues currently on appeal. The Veteran testified at a Travel Board hearing in August 2010. A transcript of that hearing is of record. The Veteran was notified in February 2012 that the Veterans Law Judge who conducted the Veteran's hearing is no longer employed by the Board. The Veteran replied to this letter expressly indicating that he did not wish to appear at a new Board hearing and that he desired to have the Board decide the case on the record. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. 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 September 2012 Board decision remanded the Veteran's claim for an increased rating for bilateral hearing loss instructing the AOJ to take appropriate action to request that the private examiners whom issued the January 2003, February 2004, October 2008 (of which there are two in October 2008), and April 2011 reports as to whether Maryland CNC speech discrimination testing was used when conducting the hearing test and to also clearly document in written form the hearing threshold levels found, as opposed to a graphical chart. It instructed that the private examiners also be requested to opine as to the reliability of the respective audiograms. The Board notes that a November 2012 letter to the Veteran from the AMC did not clearly inform the Veteran that he needed to submit signed authorizations in order for VA to accomplish this instruction. Accordingly, the Board finds that the Veteran's hearing loss claim must be remanded in order that these actions may be accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional private audiological evidence was submitted by the Veteran in April 2012. The AOJ issued a supplemental statement of the case (SSOC) dated May 2, 2013. A review of this SSOC clearly shows that the AOJ did not consider this new evidence when adjudicating the Veteran's claim. This new evidence is pertinent to the Veteran's bilateral hearing loss claim and must be considered by the AOJ and a new SSOC, showing review of this evidence, must be issued prior to adjudication by the Board. See 38 C.F.R. § 19.31(b)(1). In May 2005, the Veteran reported that he had been denied Social Security Administration (SSA) benefits. Volume 4 of the claims file contains a September 2005 computer printout indicating that the Veteran had been denied SSA disability benefits. A review of the claims file, including the virtual VA file, reveals that the SSA disability denial decision, and the medical records upon which the denial was based, are not of record and have not been requested. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA decision regarding disability benefits as they may contain information relevant to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). The Veteran's claims must be remanded so that the SSA records can be requested, and associated with the Veteran's claims file. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran has not been provided VCAA notice regarding his claim for service connection for loss of use of the right foot. He should be provided such notice. The Veteran's updated VA treatment records should be obtained and considered. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided an appropriate VCAA notice letter in regard to his claim for service connection for loss of use of the right foot. The notice letter should include an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. 2. Request copies of the Veteran's VA medical records dated from July 14, 2009 to present. 3. Request from SSA copies of any determination(s) and all records underlying any such determination(s) submitted or obtained in support of any claim for disability/supplemental income benefits from SSA submitted on behalf of the Veteran. All records/responses received should be associated with the claims file. If records are unavailable, SSA should so indicate. If unsuccessful, the Veteran should be accorded the opportunity to furnish such records directly to VA. 4. Send the Veteran VA Forms 21-4142 and request that he fill them out for the private examiners who provided him hearing acuity tests in January 2003 (Avada Audiology), February 2004 (Audicles Hearing Services), October 2008 (Audicles Hearing Services), April 2011 (Miracle Ear), and March 2013 (AccuQuest Hearing Center). If the Veteran does not supply the properly signed authorized forms, such should be noted in the record. If the Veteran does submit the properly signed forms, contact the private examiners whom issued the January 2003, February 2004, October 2008, April 2011, and March 2013 reports and ask each whether Maryland CNC speech discrimination testing was used when conducting the hearing test(s) and request that they clearly document in written numerical form the hearing threshold decibel levels found on their graphical charts. The private examiners should also be requested to opine as to the reliability of the respective audiograms. 5. When the above actions have been accomplished, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided an SSOC and afforded the appropriate period of time to respond. The SSOC should include review of all evidence received since the April 2013 SSOC, including the March 28, 2013 audiometric documents from a private hearing instrument specialist. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).