Citation Nr: 1331497 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-18 695A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for bilateral hearing loss. 2. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This case was previously before the Board in March 2011, at which time the case was remanded for further development to include additional VA medical examinations. Such examinations were accomplished in April 2011, and all other development directed by the prior remand appears to have been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Despite the foregoing, for the reasons detailed below 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. As an additional matter, the record reflects that evidence was submitted in October 2012 on the Veteran's behalf by a private attorney. However, no VA Form 21-22 or any other documentations appears to be of record that appoints this attorney as the Veteran's accredited representative. Consequently, the Board sent correspondence to the Veteran in June 2013 requesting clarification as to whether the Veteran desired to appoint this attorney as his representative, and gave him the opportunity to do so. Further, the Veteran was informed that he had 30 days to respond to this correspondence. As no response from the Veteran appears in the record available for review, the Board must proceed on the basis that the Veteran has not appointed this attorney or any other person/organization as his accredited representative. See 38 C.F.R. § 14.631 (2013). REMAND The Veteran submitted additional evidence in October 2012. Specifically, a copy of a completed VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Aid and Attendance) dated in August 2012. However, this evidence was not available for consideration when this case was last adjudicated below via an August 2011 Supplemental Statement of the Case (SSOC), and no waiver of having such evidence initially considered by the agency of original jurisdiction (AOJ) was submitted pursuant to 38 C.F.R. § 20.1304(c). Consequently, the Board also sent correspondence in June 2013 to clarify whether the Veteran did wish to waive AOJ consideration of this evidence. No response from the Veteran was received regarding this correspondence in the record available for the Board's review. Further, the Virtual VA system reflects that electronic, paperless VA treatment records have been associated with the record dated through August 2013, and initial AOJ consideration of this evidence has not been waived either. Therefore, a remand is required for this evidence to be considered in the first instance below. The Board also finds that new VA medical examinations are required in this case. In the March 2011 remand, the Board found the March 2008 VA examination to be inadequate to the extent the examiner did not comment on the specific functional effects of the Veteran's hearing loss disability in accord with Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, in the remand directives the Board specifically directed that, as part of the new examination, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report and the impact of such on the Veteran's employability. However, no such comment/opinion appears to have been promulgated as part of the April 2011 VA audio examination. Therefore, the Board must find that this examination is also not adequate to the extent the examiner did not discuss the functional effects of the Veteran's service-connected hearing loss disability. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, it has been more than 2 years since the last examination, and the fact the Veteran submitted a new VA Form 21-2680 dated in August 2012 suggests his medical condition may have increased in severity since the April 2011 examinations. Consequently, the Board concludes that new VA medical examinations are necessary for a full and fair adjudication of both the Veteran's hearing loss and SMC claims. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected hearing loss since April 2011. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his hearing loss symptoms and the impact of the condition on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected hearing loss. The claims folder should be made available to the examiner for review before the examination. In addition to objective test results, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report and the impact of such on his employability. The examiner should also address whether, and to what extent, his hearing loss decreases his ability to communicate effectively with other people. In addressing the functional effects of the Veteran's hearing loss on his occupational functioning generally, the examiner should consider his employment history, educational background, and day-to-day functioning in relation to his bilateral sensorineural hearing loss. The examiner must also opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. The Veteran should also be accorded an examination to address his claim of entitlement to SMC based upon the need for regular aid and attendance of another person. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should address whether the any of the following are present in the Veteran's case: inability to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances, which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances that normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); inability to attend to the wants of nature; inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. The examiner must also opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. The AMC/RO's decision should reflect consideration of the additional evidence received in October 2012, as well as the VA treatment records added to the record since this case was last adjudicated below. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished an SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in August 2011, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ STEVEN D. REISS 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).