Citation Nr: 1331975 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-32 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for bilateral hearing loss, evaluated as 30 percent disabling prior to August 27, 2012, and 40 percent disabling effective that date. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO, in pertinent part, denied a rating in excess of 20 percent for bilateral hearing loss. In an August 2009 rating decision, the RO granted an increased, 30 percent rating for bilateral hearing loss, effective April 18, 2007, the date of the Veteran's claim for an increased rating. In April 2012, the Veteran testified before the undersigned Acting Veterans Law Judge via videoconference; a transcript of the hearing is of record. In August 2012, the Board remanded the claim for a rating in excess of 30 percent for bilateral hearing loss to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In a January 2013 rating decision, the AMC granted an increased, 40 percent rating for bilateral hearing loss, effective August 27, 2012, the date of the most recent VA examination. The AMC denied entitlement to a rating in excess of 30 percent prior to August 27, 2012 and entitlement to a rating in excess of 40 percent from August 27, 2012 (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board. Despite the grants of increased ratings during the pendency of the appeal, the Veteran has not been awarded the highest possible evaluation, and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. In the August 2009 rating decision, the RO also granted service connection for depressive disorder, not otherwise specified, as secondary to the service-connected bilateral hearing loss. The RO assigned an initial 10 percent rating. In his December 2009 VA Form 9 (substantive appeal), the Veteran reported that the pressure of not being able to hear was causing his depression to get worse. A claim for an increased rating for service-connected depressive disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is 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 appellant if further action is required. REMAND Remand is required to obtain outstanding evidence which is potentially pertinent to the claim on appeal. An August 2006 VA audiological assessment indicates that the Veteran's test results revealed moderate to severe sensorineural hearing loss bilaterally. The audiologist commented that she had performed a comprehensive hearing evaluation, including speech threshold, air/bone conduction thresholds, and speech/word recognition. She indicated that she had spent 105 minutes evaluating the patient. The actual results of audiological testing are not included in this audiological assessment note. However, VA treatment records associated with the claims file reflect that, one week later, an audiologic assessment was scanned into the Veterans Health Information Systems and Technology Architecture (VISTA) imaging. Unfortunately, the Board is unable to access records in VISTA imaging. As the results of audiological testing performed in August 2006 are pertinent to the current claim for an increased rating for bilateral hearing loss (which was filed in April 2007), any reports of such testing, including those available in VISTA, should be obtained and associated with the claims file or Virtual VA e-folder. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the Veteran was most recently afforded a VA examination to evaluate his bilateral hearing loss in August 2012. The examiner opined that, in relative quiet, and with the use of hearing aids, the Veteran would be able to communicate well enough to perform sedentary job duties with little difficulty. The examiner stated that his opinion was consistent with the Veteran's own assessment of his communicative ability after receiving his current hearing aids. The examiner noted that, in 2010, the Veteran completed an outcome measures subjective questionnaire concerning his hearing aid benefit, at which time he stated that, when wearing his hearing aids, his hearing loss affected very little of the things he was able to do and that his hearing loss caused only slight difficulty in situations for which hearing was most important to him. The examiner added that, "This document is scanned electronically into the Veteran's permanent VA health record and is available for VBA and the court's review." It is unclear whether the August 2012 VA examiner was indicating that the 2010 questionnaire or the August 2012 VA examination report had been scanned into the Veteran's health record, although it seems likely that he was referring to the 2010 questionnaire. In any event, the most recent VA treatment record presently associated with the claims file is dated in August 2009, which indicates that an audiological consultation was ordered. A handwritten note on that VA treatment record indicates that records from July 2007 to December 2011 had been reviewed, but only those records relevant to the appeal had been printed. Despite this handwritten note, the reference to the 2010 questionnaire completed by the Veteran after receiving his current hearing aids indicates that pertinent VA treatment records dated since August 2009 may be available. Any more recent VA treatment records should be obtained on remand. Also, during a July 2009 VA mental disorders examination, the Veteran reported that his income consisted of his VA service-connected disability benefit and social security. In an August 2009 VA Form 21-527, Income-Net Worth and Employment Statement, the Veteran reported receiving supplemental security/public assistance. Although the Veteran reported in the August 2009 VA Form 21-527 that he had received care for diabetes, sleep apnea, and hypertension in the past 12 months, he has also reported that his hearing loss interferes with his ability to work. On remand, the AMC/RO should clarify whether the Veteran is in receipt of SSA benefits as a result of his hearing loss and, if so, records regarding his claim for SSA benefits should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Further, a July 2007 VA treatment record notes that the Veteran was "concerned about loss of job concerning hearin[g] aids discussed with his boss." The physician stated that the Veteran reported that he needed to pass hearing tests with hearing aids. The Veteran requested a statement for his job stating that it was advisable for him to wear his hearing aids at work. It was noted that the Veteran worked as a truck driver and could not return to work until he had such a statement. These records suggest that the Veteran may have had hearing tests performed in conjunction with his employment as a truck driver. On remand, the AMC/RO should ask the Veteran to clarify whether he had his hearing tested in conjunction with his employment and, if so, to provide adequate authorization to allow VA to obtain records regarding such testing. See 38 C.F.R. § 3.159(c)(1) (2013). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) results of audiological testing/audiograms performed in August 2006 at the Houston VA Medical Center (VAMC) and, (2) treatment records from the Houston VAMC, to include the Beaumont outpatient clinic (OPC), dated since August 2009, to include a 2010 questionnaire regarding the Veteran's hearing (as referenced during the August 2012 VA examination). Ask the Veteran to clarify whether he had his hearing tested in conjunction with his employment as a truck driver, at any time since April 2006. If so, request that the Veteran submit any necessary release required to obtain copies of any hearing tests afforded to him by his employer, and request such records. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Ask the Veteran whether he is in receipt of benefits from the SSA related, at least in part, to his hearing loss. If so, obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits, as well as copies of all medical records underlying those determinations. 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. In readjudicating the claim, the AMC/RO should consider whether referral for extraschedular consideration is warranted. If the benefit sought remains denied the Veteran and his representative should be provided an SSOC. An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matter that 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. 2013). _________________________________________________ KELLI A. KORDICH 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).