Citation Nr: 1337609	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  10-34 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to restoration of a 70 percent rating for bilateral hearing loss disability, currently rated at 30 percent disabling.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to September 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, decreased the evaluation of the Veteran's bilateral hearing loss disability from 70 percent to 30 percent, effective July 1, 2010.

In June 2011 and March 2013, the Board remanded the claim for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence.  

The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC.  


REMAND

Pursuant to the March 2013 Board remand instructions, an April 2013 VA medical opinion was provided.  In rendering this opinion, the VA physician referenced and relied on two additional hearing evaluations performed for treatment purposes on June 9, 2010 and June 27, 2012.  In a June 2013 VA Form 21-4138, the Veteran requested VA to obtain his medical records from the Austin VA Outpatient Center (OPC) in support of his claim for an increase in service connection for hearing loss.  

Review of the physical claims file, the Virtual VA system, and VBMS show that the identified June 2010 and June 2012 hearing evaluation reports are not of record.  The most recent VA outpatient treatment record in the physical claims file is dated October 2009 from the Central Texas Health Care System (HCS), Austin division.  Since VA records are considered part of the record on appeal, they are within VA's constructive possession and must be considered in deciding this issue on appeal.   

The Board acknowledges the Veteran's request in the June 2013 VA Form 21-4138 for a new Compensation and Pension (C&P) examination and that his most recent VA examination was approximately three years ago.  Nevertheless, an additional VA examination is not warranted in this case because neither the evidence of record nor the Veteran indicates that the service-connected bilateral hearing loss has become more severe since the August 2011 VA examination.  In fact, the April 2013 VA medical opinion notes the June 2012 hearing evaluation results are consistent with the VA C&P examinations of record, thus not suggestive of any worsening in the Veteran's hearing. 

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the record all outstanding VA outpatient treatment records, to include from the Texas HCS, Austin and Temple divisions, from October 2009 to the present.  A negative response must be provided if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c).

2.  Thereafter, the issue on appeal should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

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. 2013).



_________________________________________________
MICHELLE L. KANE
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).