Citation Nr: 1331060 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-14 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: David Anaise, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Waco, Texas (RO) which initially evaluated the Veteran's service-connected bilateral hearing loss at 30 percent. In July 2011, May 2012 and November 2012, the Board remanded the case to the RO for additional evidentiary development. The Board's July 2011 decision/remand denied the Veteran's claim for an initial rating in excess of 10 percent for bilateral tinnitus. The Veteran testified before a Veterans Law Judge (VLJ) at an April 2013 Board videoconference hearing. The hearing transcript is of record. A review of the Virtual VA paperless claims processing system reveals the Veteran's Social Security Administration (SSA) records, updated Waco and Amarillo VA Medical Center (VAMC) records, and the Veteran's April 2013 Board videoconference hearing transcript. The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal. The issue of entitlement to service connection for Meniere's Disease, including as secondary to service-connected bilateral hearing loss and service-connected bilateral tinnitus has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate action. 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 The Veteran seeks an initial disability rating in excess of 30 percent for service-connected bilateral hearing loss. The Veteran contends that his bilateral hearing loss is worse as he has lost all hearing in his right ear. See Veteran's Hearing Transcript, pgs. 4, 7, April 2013. The most recent VA audiological examination was conducted in December 2011. The Veteran is competent to report a worsening of symptoms. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran's assertion that his bilateral hearing loss disability has increased in severity, another VA examination is necessary. 38 C.F.R. § 3.327(a) (2013). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must ascertain if the Veteran has received any VA, non-VA, or other medical treatment that is not evidenced by the current record for bilateral hearing loss. The RO/AMC must provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file and obtain these records and associate them with the claims folder. 2. After completion of the above, schedule an appropriate VA examination to determine the current severity of the Veteran's bilateral hearing loss. The entire claims folders and a copy of this remand must be made available to the examiner in conjunction with the examination. The examiner should: Conduct a VA audiological examination and provide the objective test results. The examiner must also describe fully the functional impact of the Veteran's service-connected bilateral hearing loss in the examination report, to include any effects on occupational abilities. Comment upon whether, given the Veteran's subjective reports of the severity of his disorder (i.e. no ability to hear out of his right ear), there any clinical basis for such a report of severity. The examiner must also discuss the results of the April 2007, April 2009, September 2010, August 2011 and December 2011 VA audiological examinations and any subsequent changes in severity. A full rationale must be provided for all stated medical opinions. Note: if the examiner concludes that the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why the opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL MARTIN 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).