Citation Nr: 1337231 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-02 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective from August 7, 2009. The Veteran appealed the assigned rating. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's claim. A review of the documents in the paperless files reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran was last provided a VA examination in connection with his current claim in January 2010, which would have been over three years ago. During the May 2012 hearing, the Veteran testified that his hearing loss had worsened since that examination. See hearing transcript, pp. 14-15. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's bilateral hearing loss. This VA examination should also include a statement as the effect of his hearing loss on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Board acknowledges the Veteran's request for another VA audiology examination performed "in a real environment." See hearing transcript, p. 3. However, the regulations require a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See 38 C.F.R. § 4.85. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court upheld VA's policy of conducting audiometry testing in a sound controlled room. The Veteran is advised that he is also free to submit a hearing loss testing from a private audiology examiner of his choice, as long as the controlled speech discrimination test administered by a state-licensed audiologist is the Maryland CNC Test, and puretone thresholds are conducted at 1,000, 2,000, 3,000 and 4,000 Hertz. Additionally, the Board notes that the claims file does not contain any VA treatment records dated since December 2009. Because the Board is already remanding the case in order to secure a more recent VA audiology examination, any additional VA treatment records dated after December 2009 should also be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should 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, the RO/AMC should obtain and associate these records with the claims file. A specific request should also be made for any outstanding VA medical records dated from December 2009 to the present. 2. After securing any outstanding VA and/or private treatment records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should comment on the severity of the Veteran's bilateral hearing loss and report all signs and symptoms necessary for rating the disability. The examiner should also include a statement as to the effect of the Veteran's hearing loss on his occupational functioning and daily activities. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 4. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JESSICA J. WILLS 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).