Citation Nr: 1332447 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-27 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss for the period beginning February 9, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1947. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for hearing loss, and which assigned an initial noncompensable evaluation. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In October 2012, the RO increased the Veteran's evaluation to 30 percent, with an effective date of December 17, 2011. Since this increase did not constitute a full grant of the benefits sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In May 2013, the Board denied the issues of entitlement to an initial compensable evaluation prior to December 16, 2011, and an evaluation in excess of 30 percent for the period from December 17, 2011, to February 8, 2012, and remanded the issue of entitlement to an evaluation in excess of 30 percent as of February 9, 2012. 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 appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its May 2013 remand, the Board noted that a VA treatment record, dated February 9, 2012, showed that the Veteran underwent an audiological evaluation. It showed that both a pure tone threshold test, and a speech discrimination test, were performed, and that the speech discrimination test results were set forth, but that the particular test utilized to obtain them was not identified. The nature and severity of the Veteran's hearing loss was generalized from the pure tone threshold test results, but the individual auditory thresholds for the relevant frequencies were not set forth. Rather, it was indicated that more information in these regards was available elsewhere. "Tools - Audiogram Display" was specifically referenced. The Board essentially stated that the Board had constructive notice of all information contained in records associated with the Veteran's audiological examination, and that under applicable law, the specific information concerning pure tone thresholds, and the type of speech discrimination test used on February 9, 2012, must be obtained. The Board therefore remanded the claim for an attempt to obtain this information, along with additional instructions should the information obtained be in graphical rather than numerical format, or otherwise require interpretation by a medical specialist. A review of the claims file shows that although the Appeals Management Center (AMC) sent a request for the information discussed by the Board to the Orlando VAMC in June 2013, it does not appear that any additional medical evidence was ever obtained. In this regard, an August 2013 supplemental statement of the case shows that the AMC noted that the claim was remanded by the Board for additional development, but it does not otherwise discuss its June 2013 attempt to obtain the requested information. In summary, the development requested by the Board in its May 2013 remand has not been completed. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). On remand, the RO/AMC should complete the development as requested in the Board's May 2013 remand. Given the above, a REMAND is directed for the following. Expedited handling is required because this matter has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Accordingly, the case is REMANDED for the following action: 1. Make as many requests as necessary to obtain the additional information in the "Tools - Audiogram Display" for the Veteran's February 9, 2012, VA audiological evaluation. Associate the additional information received with the Veteran's claims file or "eFolder." If the additional information ultimately is not received, notify the Veteran pursuant to established procedure. Document his claims file or "eFolder" as appropriate regarding this paragraph. 2. If the aforementioned additional information is obtained, the pure tone thresholds are in graphical rather than numerical format, and interpretation of these thresholds is difficult or complicated for the RO or AMC, arrange for an audiologist or other medical professional with the appropriate expertise to perform the interpretation. Place a copy of the expert interpretation in the Veteran's claims file or "eFolder." 3. Review the claims file and undertake any additional development indicated. This shall include making as many requests as necessary to obtain updated VA treatment records, if any, regarding the Veteran. This also shall include making an initial request and any necessary follow-up requests for any pertinent private treatment records regarding the Veteran which he identifies on remand, and for which he provides authorization for their release rather than submitting them on his own behalf. Associate any records received with his claims file or "eFolder." If any records requested ultimately are not received, notify the Veteran pursuant to established procedure. Document his claims file or "eFolder" as appropriate regarding this paragraph. 4. Finally, readjudicate the issue of the Veteran's entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss as of February 9, 2012. If this benefit is not granted in full, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the SSOC in his claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2013). He also is advised that he has the right to submit additional evidence and argument on the issue the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is reiterated that this matter must be afforded expeditious treatment because it has been advanced on the docket. Further, the law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JONATHAN B. KRAMER 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).