Citation Nr: 1331265 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-02 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision which granted service connection for bilateral hearing loss and assigned it a noncompensable rating. A February 2011 Board decision on this and other issues was appealed. Subsequently, the United States Court of Appeals for Veterans Claims (Court) issued a September 2012 Order in which it vacated the February 2011 Board decision on the hearing loss issue and remanded the case to the Board for further development. The Court affirmed the Board's February 2011 decision concerning the other issues. The February 2011 Board decision also remanded the issues of entitlement to an initial compensable rating for peripheral neuropathy of the upper and lower extremities to include entitlement to a separate evaluation, and entitlement to an initial compensable rating for tinea pedis to include entitlement to a separate evaluation. The remand requested that the Veteran be provided a statement of the case for these issues, and noted that the issues should not be returned to the Board unless a timely substantive appeal was received. Subsequently, the Veteran was provided a statement of the case for these issues in April 2011, and he submitted a timely substantive appeal for all of these issues in June 2011. However, the Veteran also requested a hearing in his substantive appeal, and letters in the claims folder show that this matter is in the process of being addressed. The VA electronic appeals tracking system (VACOLS) shows that the RO is awaiting the return of the claims folder so that the hearing can be scheduled and conducted. Furthermore, these issues have not been certified to the Board by the RO as ready for appellate consideration. Therefore, as these issues have not been certified to the Board as ready for consideration, additional consideration of them will deferred, they will not be listed on the front page of this decision, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for anxiety with depression as secondary to the Veteran's service connected diabetes and complications; entitlement to special monthly compensation for both the Veteran and his wife based on the need for aid and attendance; an increased evaluation for post-traumatic stress disorder (PTSD); an increased evaluation for prostatitis; an increased evaluation for diabetic retinopathy; and an increased evaluation for erectile dysfunction have been raised by the record, but the record available to the Board does not show that they have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In September 2012, the Court vacated the Board's February 2011 decision denying a compensable rating for bilateral hearing loss disability and remanded the matter to the Board, for the Board to consider a September 2009 report of a VA audiometric examination which was not considered, but was constructively of record, at the time of the Board's February 2011 decision. A review of Virtual VA reveals that such report is now contained therein. It has not been considered by the RO in the first instance, and so remand for such consideration is required. Any VA medical records of treatment which the Veteran has received since that September 2009 audiometric examination should also be obtained, as they are constructively of record. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any other VA medical records of treatment the Veteran has received since September 2009. 2. Thereafter, readjudicate the Veteran's pending claim in light of the September 2009 VA audiometric examination report and any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). 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). _________________________________________________ JOHN L. PRICHARD Acting 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) (2013).