Citation Nr: 1327920 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-02 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to higher initial ratings for a bilateral hearing loss disability, rated noncompensably prior to October 13, 2011, and 10 percent from then. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran performed active naval service from March 1944 to May 1946. This matter arises to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that in pertinent part granted service connection and an initial noncompensable rating for a bilateral hearing loss disability. In November 2011, the RO granted a 10 percent schedular rating for this disability effective October 13, 2011. The Veteran continued his appeal for a higher initial rating. The Board remanded the claim in April 2013 and again in July 2013. A November 1947 rating decision granted service connection (for outpatient treatment purposes only) for the loss of teeth numbers 2, 4, 5, 9, 17, 20, and 29 due to dental trauma. In April 2013, the Board denied service connection for a dental injury. That Board decision became final, as it does not appear that the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court), nor has the Veteran requested reconsideration by the Chairman of the Board of Veterans' Appeals. In July 2013, the Veteran sent in additional dental evidence. It is unclear whether the Veteran's intent is to (1) request an increased rating for his already service-connected dental condition; (2) request secondary service connection for additional loss of teeth; (3) request reimbursement for private medical and dental expenses; or, (4) reopen the recently denied claim for service connection for dental injury. The Board lacks jurisdiction to address these potential claims further. They are referred to VA's Appeals Management Center (AMC) for appropriate action. The Veteran's representative is requested to assist the Veteran in clarifying these matters, as the Veteran recently wrote, "I have no help. I am 87-No one helped me before." The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND This appeal has been advanced on the Board's docket. Expedited handling is requested. The Court held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its July 2013 remand instruction, the Board requested that the AMC obtain a copy of the VA audiogram that is mentioned in a December 10, 2012 VA audiology note, and place that audiogram in the claims file. That audiogram contains medical information vital to the issue on appeal. Since then, the AMC has not obtained the requested audiogram, nor has the AMC explained why this audiogram was not obtained. Moreover, recent records associated with Virtual VA do not include the requested audiogram. Accordingly, the case is REMANDED for the following action: 1. The AMC must obtain the December 2012 VA audiogram mentioned in a December 10, 2012, VA audiology note, and associate it with the claims file. All attempts to secure this audiogram must be documented. If, after making reasonable effort, the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific record that VA is unable to obtain; (b) briefly explain the efforts made to obtain this record; (c) describe any further action to be taken by VA with respect to the claim; and, (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. If all attempts to locate the requested VA audiogram fail, then VA must offer the Veteran another VA audiometry evaluation to determine the nature and severity of his bilateral hearing loss disability and a copy of that audiogram must be associated with the claims file. 3. Following the above, the AMC should review all relevant evidence and re-adjudicate the claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. 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). Failure to report for a scheduled VA examination without good cause, if an examination is scheduled, may have adverse consequences on this claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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).