Citation Nr: 1330222 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-33 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a combined rating in excess of 40 percent. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1965 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board has jurisdiction over the issues raised by the Veteran in his appeal, however, some explanation of the claim's history is helpful. In January 2011, the RO granted the Veteran's claims for service connection for radiculopathy and an increased rating claim for degenerative disk disease and continued his rating of 10 percent for his service connected bilateral hearing loss. The Veteran was notified that his new overall combined rating would be increased to 40 percent as a result of this decision. In the Veteran's notice of disagreement, dated February 2011, the Veteran appealed the RO's calculation of this overall combined rating. The RO issued a statement of the case (SOC) in September 2012 addressing the Veteran's contention and explained the calculation per VA law. The issue on appeal was defined in the SOC as "combined evaluation of 40 percent." In November 2011 the Veteran submitted a letter and his VA Form 9, both with accompanying medical records, in support of an increase rating for his bilateral hearing loss claim. In his VA Form 9, the Veteran again expressed his disagreement with his overall 40 percent rating and focused his appeal stating that his bilateral hearing loss was not correctly rated and had severely declined and that he had received ineffective testing, which resulted in the continued 10 percent rating in the RO's January 2011 rating decision. The Board finds that it has jurisdiction over the Veteran's increased rating claim for bilateral hearing loss, in that such a claim is directly related to the issue of a combined rating in excess of 40 percent. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his bilateral hearing loss. The Veteran's last VA examination in connection with his increase rating claim for bilateral hearing loss was in August 2010. The Veteran has claimed that his bilateral hearing loss disorder has worsened since this examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). Also, review of the file shows that the RO did not issue a supplemental statement of the claim with regard to the Veteran's increase rating for bilateral hearing loss after receipt of the medical records submitted by the Veteran in November 2012. Accordingly, this case must be remanded so that the evidence received subsequent to the September 2012 statement of the case may be considered. See generally Disabled American Veterans et. al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all medical care providers who have treated him for his bilateral hearing loss, including any private providers. After obtaining any necessary authorization from the Veteran, request all identified records. All reasonable attempts should be made to obtain any identified records, including any outstanding VA records or records from Dr. C.J. and Dr. R.K. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all outstanding treatment records and other documents have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his bilateral hearing loss. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected bilateral hearing loss. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ CHERYL L. MASON 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).