Citation Nr: 1335090 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-31 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. REMAND The Veteran is seeking a compensable initial evaluation for his service-connected bilateral hearing loss. At his February 2012 hearing before the Board, the Veteran testified that his service-connected hearing loss had worsened since his most recent audiological evaluations were performed in 2010. See Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). He also reported having received treatment from the VA for this disability. Under these circumstances, the RO should update the Veteran's treatment records, and then schedule him for an updated audiological examination. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that 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 had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional evidence, to include VA and non-VA medical providers who have treated him for his bilateral hearing loss since December 2009. Based on the Veteran's response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO should obtain all available treatment records concerning the Veteran's hearing loss from the Jack C. Montgomery VA medical center since August 19, 2010. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must then be afforded an appropriate examination to determine the severity of his service-connected bilateral hearing loss. The claims file and all electronic records on be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The examiner must consider and describe the functional effects of the Veteran's hearing loss, to include the effects of the Veteran's hearing loss on his occupation in the examination report. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. The Veteran must be notified that it is his responsibility to report for all scheduled examinations, and that the consequences for failure to report for an examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation in the claim file must show that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issue of entitlement to an initial compensable evaluation for bilateral hearing loss must be readjudicated. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).