Citation Nr: 1332264 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-13 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss disability. 2. Entitlement to an evaluation in excess of 30 percent for cardiac artery disease (CAD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1967 to August 1969. These matters come on appeal to the Board of Veterans' Appeals from rating decisions from the Department of Veterans Affairs, Regional Office located in Houston, Texas (RO). In an October 2008 rating decision, the RO denied a noncompensable evaluation for bilateral hearing loss disability. After consideration of additional evidence, the RO continued a noncompensable evaluation for bilateral hearing loss disability in January 2009 rating decision. The Veteran appealed. The Veteran's Virtual VA paperless claims processing shows that in an April 2013 rating decision, the RO denied an evaluation in excess of 30 percent for CAD. The Veterans Appeals Control and Locator System (VACOLS) show that the Veteran filed a timely notice of disagreement in May 2013. In addition, in a September 2013 statement, the Veteran's Representative noted that the Veteran has filed a timely notice of disagreement and he has not yet been provided with a statement of the case (SOC). The Board notes that the April 2013 rating decision also denied the Veteran's claims for service connection for hypertension, hypertensive retinopathy, and enlarged prostate, but there is no indication in the record that the Veteran has yet filed a notice of disagreement to these denials. 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 While the Board regrets any delay in the adjudication of the Veteran's appeal, it finds that additional development is necessary. The Veteran seeks a compensable rating for bilateral hearing loss disability, the Board notes that the claims file includes private and VA audiometric results. The results from a February 2008 private evaluation and an April 2008 VA evaluation show relatively similar audiometric findings with only a slight decline from February 2008 to April 2008. However, the audiometric results from a December 2008 VA audiology examination shows significantly worse audiometric data from the findings demonstrated earlier in April 2008. The RO scheduled the Veteran for another VA audiology examination in January 2008, but no audiometric test results were reported or obtained as the examiner determined that the Veteran would not or could not provide reliable and valid audiometric test findings, suggesting an intentional act that creates a negative inference. Pertinently, the Veteran also asserts that the January 2010 VA examination was inadequate. The Veteran contends that the VA examiner did not administer the audiometric tests properly by using a higher than normal presentation level, which results in his poor performance during clinical testing. See March 2010 substantive appeal. Given the Veteran's assertions as well as the lack of any valid audiometric data since April 2008, the Board finds that the Veteran should be afforded a new VA audiology examination. As it appears that the Veteran is receiving ongoing treatment at the VA and private facilities for his hearing loss disability, additional treatment records should be associated with the claims folder. In addition, a remanded is needed in order for the Agency of Original Jurisdiction (AOJ) to issue the Veteran a SOC on the matter of entitlement of an increased evaluation for CAD. As was described in the Introduction, the Veteran timely disputed the amount of payment from the April 2013 rating decision that denied an increased evaluation in excess of 30 percent for CAD disability. A SOC pertaining to that issue has not been issued to the Veteran. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a notice of disagreement is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. So it is in this case. Accordingly, this case is remanded so that the Agency of Original Jurisdiction (AOJ) may issue a SOC on this matter. Any temporary claims folder that have been created and are located at the RO should be associated with the permanent claims folder. Accordingly, the case is REMANDED for the following action: 1. In accordance with any applicable policies, any temporary claims folder must be consolidated with the Veteran's main claim folder. 2. VA should issue a statement of the case (SOC) to the Veteran regarding his claim increased rating for CAD. The Veteran is advised that a timely substantive appeal will be necessary to perfect appeals to the Board concerning the claim. 3. Ask the Veteran identify any additional outstanding, pertinent medical records, to specifically include current treatment records and records pertaining to the Veteran's bilateral hearing loss disability. 4. Obtain any outstanding VA treatment records since 2009 pertaining to the Veteran's bilateral hearing loss disability. 5. Schedule the Veteran for a VA audiology examination an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from the Veteran's service connected bilateral hearing loss disability. Audiometric testing and speech discrimination testing should be performed, including the Maryland CNC test. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's bilateral hearing loss. If test results are considered invalid or an inaccurate depiction of the severity of the Veteran's hearing loss, such a conclusion should be explained in detail why valid and reliable audiometric data could not be obtain. 6. Following completion of the above, re-adjudicate the rating issue on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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 LANE 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).