Citation Nr: 1337568 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-28 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, His Spouse and Daughter ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, in pertinent part, awarded service-connection for bilateral hearing loss and assigned a 30 percent evaluation effective from August 2010. The Veteran presented testimony before the Board in October 2013. A transcript of the hearing has been obtained. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim. The Veteran contends that his bilateral hearing has worsened in severity since his last examination. Specifically, he testified that he is required to wear hearing aids in both ears and has difficulty hearing when people talk to him. His wife and daughter testified that the Veteran is only able to understand them, if he looks at them directly while they are speaking to him, by partially lip reading. The last VA examination was in May 2011, over two years ago. The Board cannot ascertain to what extent the bilateral hearing loss has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). Moreover, the Veteran testified that he received treatment for his hearing loss at the Houston and "Conroe" VA Medical Center (VAMC). There are no VA outpatient treatment records associated with the paper claims file or virtual record. Any missing VA medical treatment records pertinent to the issue must be obtained upon Remand. 38 C.F.R. § 3.159(c)(1), (2). The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment of the claimed bilateral hearing loss, to include those from the Houston and "Conroe" VAMCs. All records and/or responses received should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for the appropriate VA examination. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, Veterans Benefits Management System (VBMS), CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed, to include audiometric evaluations and controlled speech discrimination tests. Audiometric findings (including speech discrimination) should be reported to allow for the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. 3. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record and should consider whether a total rating for compensation based on individual unemployability (TDIU) is warranted. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).