Citation Nr: 1330847	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-32 294A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to an initial compensable rating for bilateral hearing loss. 

2. Entitlement to an initial rating in excess of 10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel





INTRODUCTION

The Veteran served on active duty from June 1967 to June 1971. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  The Veteran filed a notice of disagreement (NOD) in October 2008.  A statement of the case (SOC) was issued on August 2009 and the Veteran perfected the appeal with the timely submission of a VA Form 9 in August 2009.

The claim was previously before the Board in April 2011, at which time the claims for increased initial evaluations for hearing loss and tinnitus were denied.  The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court), which issued a remand in November 2012 for further development.  As such, the claims are once again before the Board.

The Board notes that since the time of the Court's remand, the Veteran has changed his representative to a private attorney via the submission of a VA Form 21-22a (Appointment of Individual as Claimant's Representative) on July 2013.  As such, the caption page has been amended to reflect the change. 

A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim.  In particular, the Veteran should be provided with a new VA examination for his service-connected bilateral hearing loss and tinnitus.

Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes.  Littke v. Derwinski, 1 Vet. App. 90, 93 (1990).

The Veteran has alleged that his currently rated non-compensable hearing loss and 10 percent tinnitus are worse than contemplated in his initial evaluations.  In particular, the Veteran contends that increased evaluations are warranted as his hearing loss and tinnitus have affected his occupational and social functioning. 

Upon VA contract examination in June 2008, the Veteran reported that his current symptoms included some decreased hearing and constant ringing in both ears that was bothersome.  Hearing aids and medication did not seem to help his symptoms.  An audiogram indicated pure tone thresholds, in decibels, as follows:
 
 
 
 
HERTZ
 
 
 
500
1000
2000
3000
4000
RIGHT
        25
        20
        15
        15
        45
LEFT
        20
        20
        20
        55
        70
 
Speech audiometry revealed speech recognition ability of 88 percent in both ears.  The diagnosis was hearing within normal limits in the low and middle frequencies decreasing to a severe high frequency loss in both ears.

A preliminary review of the June 2008 audio examination reveals that it is insufficient for rating purposes.  While an objective audiogram and Maryland CNC speech recognition tests were employed by a licensed audiologist, the examiner failed to discuss the functional effects of the Veteran's condition, to include both hearing loss and tinnitus.  This is particularly significant in this particular appeal, as the Veteran has consistently described more severe functional loss because of these conditions. 

Because the prior VA examiner did not comment sufficiently on the specific functional effects of the Veteran's hearing loss disability, to include tinnitus, the Board must remand this claim to provide the Veteran another VA audiological examination for compensation purposes addressing the impact of his hearing loss on his daily functioning.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's bilateral hearing loss and tinnitus. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.

In particular, the examiner must assess the current nature, extent, and severity of this hearing loss disability and tinnitus, and, in so doing, must fully describe the consequent effects on the Veteran's daily functioning. See Martinak, 21 Vet. App. at 455.

3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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).



_________________________________________________
DEBORAH W. SINGLETON
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).