Citation Nr: 1328886 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-27 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to restoration of a 40 percent rating for service-connected bilateral hearing loss. 2. Entitlement to a higher rating for bilateral hearing loss, rated as 40 percent disabling prior to August 1, 2011, 30 percent disabling from August 1, 2011 to March 26, 2013 and 50 percent disabling thereafter. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1944 to March 1947. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2010 and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a July 2010 rating decision (in conjunction with a claim for increase), the RO proposed that the rating for the Veteran's bilateral hearing loss be reduced from 40 percent to 30 percent. A May 2011 rating decision implemented this proposed reduction, effective August 1, 2011. In a May 2013 rating decision, the RO granted a 50 percent rating for bilateral hearing loss, effective March 26, 2013. However, inasmuch as a higher rating is available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating has remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims processing system does not reveal any additional documents to the claims on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. As noted in the Introduction, in a July 2010 rating decision, the RO proposed to reduce the rating for the Veteran's service-connected bilateral hearing loss from 40 percent to 30 percent. This proposed reduction was then implemented in a May 2011 rating decision, effective August 1, 2011. A May 23, 2011, letter notified the Veteran of this decision along with his rights to appeal (enclosed in a VA Form 4107) if he disagreed with the outcome. The letter specifically notified the Veteran that a notice of disagreement (NOD) must be filed within one-year. See 38 C.F.R. § 20.302 (2012). In June 2011, the Veteran submitted a written statement indicating his disagreement with the finding by the RO that his hearing loss had improved and stated that his "hearing loss is the same (on some days) or worse than when it was rated as 40 [percent]." However, the RO issued a statement of the case (SOC) in October 2012 with respect to the claim for an increased rating for bilateral hearing loss only and did not address the reduction in rating. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, the issue of the propriety of the rating reduction must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.301, 20.302 (2012). On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to this matter. As to the perfected issue of entitlement to a higher rating for bilateral hearing loss, the Board notes that the decision with respect to the rating reduction may directly impact this issue. Thus, under the circumstances of this case, the Board finds that issue for which an appeal has been perfected are, effectively, inextricably intertwined with the issue of entitlement to restoration of a 40 percent rating for bilateral hearing loss, for which an appeal has not yet been perfected. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Hence, any Board action on the claim for higher rating for bilateral hearing loss, would be premature at this juncture. The Board emphasizes, however, if the Veteran does not perfect an appeal as to the issue of restoration of the 40 percent rating for bilateral hearing loss, then the matter of entitlement for an increased rating for bilateral hearing loss remains on appeal, and should be returned to the Board for further appellate consideration. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran an SOC with respect to the matter of entitlement to restoration of a 40 percent rating for the service-connected bilateral hearing loss, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal to perfect an appeal of this issue. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected--for this claim, within 60 days of the issuance of the SOC. 2. The claims file should not be returned to the Board until after the Veteran perfects an appeal as to the above-referenced rating restoration claim, or until the time period for doing so expires, whichever occurs first. 3. If the Veteran does not perfect an appeal as to the matter of entitlement to restoration of the 40 percent rating for bilateral hearing loss, then the matter of entitlement to a higher rating for bilateral hearing loss remains on appeal, and should be returned to the Board for further appellate consideration. The Veteran 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). _________________________________________________ MARJORIE A. AUER 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).