Citation Nr: 1333087 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-30 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. By decision dated in June 2012, the Board denied a compensable evaluation for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 Order, the Court vacated the Board's June 2012 decision that denied a compensable rating for bilateral hearing loss and remanded the matter for further consideration and instructions consistent with a May 2013 Joint Motion for Remand. Following review of the record, the appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the May 2013 Joint Motion for Remand, the parties agreed that a remand was necessary because relevant VA records that were constructively before the Board, to include the report of a January 2010 audiology evaluation, were not considered in the Board's June 2012 decision. The parties found that as such, the Board's analysis was incomplete and inadequate. It was also determined that referral for an extraschedular evaluation based on such evidence should also be considered. The Board notes that the appellant's representative submitted VA outpatient records dated between January and February 2010 indicating that he had been afforded an audiology evaluation. It is noted that this document contains a reported summary of an audiological study that was conducted, but does not conclude the chart of the audiometric study. In the representative's Written Brief Presentation dated in September 2013, it is indicated that the Veteran underwent a hearing evaluation in May 2013. The document noted that the audiology report was attached but it is not of record. The representative stated that the 2013 examiner noted that there had been a significant change in hearing sensitivity when compared to a previous study and that current findings entitled the Veteran to a 20 percent disability rating for hearing loss. Review of the record, including Virtual VA, reflects that the appellant has received VA outpatient treatment over the years. However, the most recent clinical records date only through October 9, 2007. As there is significant evidence that additional and pertinent VA records may exist, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. v. Brown, 8 Vet. App. 69 (1995). Therefore, VA records dating from October 2007 should be requested and associated with the claims folder or placed in Virtual VA. Review of the record discloses that the Veteran does not appear to have had a VA compensation and pension audiology examination since 2009. (The nature of the reported2013 study is unclear.) The Court has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability has increased in severity); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As such, the appellant will be afforded a new VA audiology evaluation. Accordingly, the case is REMANDED for the following actions: 1. Request relevant VA outpatient records dating from October 2007 to the present and associate them with the claims folder or Virtual VA. Records should include the audiometric chart from the January 2010 examination, and records of any evaluation conducted in May 2013. If needed, the appellant's attorney should be contacted to obtain a copy of the reported May 2013 study if it is not found in VA records. All attempts to obtain records should be documented. 2. Schedule the appellant for a VA audiology evaluation to ascertain the severity of hearing loss disability. The examination should be conducted in accordance with 38 C.F.R. § 4.85 (2013). 3. After taking any further development deemed appropriate, readjudicate the issue, including whether referral for extraschedular consideration is warranted. If the benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative 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. 2013). _________________________________________________ MICHAEL D. LYON 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).