Citation Nr: 1327467 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-17 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In May 2011 and July 2012, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in May 2013, which addressed this additional evidence. The Board notes that originally, the issue on appeal was entitlement to service connection for bilateral hearing loss. However, during the pendency of the appeal, service connection for left ear hearing loss was granted in a May 2013 rating decision. As such, the Board has recharacterized the issue as reflected on the title page of the decision. 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 In July 2012, the Board remanded the claim for additional development. Specifically, the Board requested that audiogram results from audiological testing conducted in January 2000, January 2001, April 2001, January 2002, and June 2004 at the Veteran's local VA outpatient treatment facility be obtained and associated with the claims file. It was also noted that if the records are not available, a negative reply to that effect is required. See the July 2012 Board remand. Upon review of the record, audiogram results from June 2004 were obtained and associated with the claims file, but there are no audiogram results dated January 2000, January 2001, April 2001, and January 2002. On May 11, 2013, the RO/AMC made an additional request for the January 2000, January 2001, April 2001, and January 2002 audiograms. There was no response from the VA medical center. It is unclear as to whether the remaining audiograms are not available or just have not been obtained as no negative reply was indicated. As previously noted, these records must be obtained on remand, especially in light of the fact that the RO denied service connection for the right ear hearing loss, partly based on the fact that the Veteran does not have a disability as defined by VA. The Court has held, in Stegall v. West, 11 Vet. App. 268 (1998) that a remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Accordingly, the case is REMANDED for the following action: 1. Obtain VA audiograms dated January 2000, January 2001, April 2001, and January 2002. As previously noted, VA outpatient treatment notes show that the Veteran underwent several audiograms during the stated times, but the actual results of the audiograms are not included in the treatment records and must be obtained. If these records are not available, a negative reply is required. 2. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). 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). _________________________________________________ P.M. DILORENZO 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).