Citation Nr: 1338657 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-24 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Colorado Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran recently moved, and his case came under the jurisdiction of the RO in St. Petersburg, Florida. The Veteran and his wife testified in support of this claim during a videoconference hearing held before the undersigned Veterans Law Judge in August 2013. A copy of the hearing transcript is of record. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. 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 Board finds that additional development of the evidence is required concerning the Veteran's claim. The Veteran seeks a higher rating for his bilateral hearing loss, which is currently evaluated as 0 percent disabling. 38 C.F.R. § 4.85. He was last afforded a VA examination in connection with that disability in March 2010. However, the Veteran stated during a videoconference hearing held in August 2013 that his hearing loss has worsened during the last two years. The Veteran testified that he has experienced greater difficulty listening to the television, distinguishing speech from other sounds at his job as a restaurant manager, and engaging in conversations, particularly with his spouse. The Veteran's testimony suggests that there may have been a significant shift in his overall degree of bilateral hearing loss. Therefore, as the Board itself is precluded from rendering an independent medical assessment of the current severity of that disability, it has no discretion but to remand the Veteran's claim for an additional VA examination. More contemporaneous medical findings are needed to evaluate the disability on appeal. See 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 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). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical treatment records dating from June 2012 to the present. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. After completion of the foregoing, schedule the Veteran for an audiology examination to determine the current severity and effect of his service-connected hearing loss and the impact of that disability on his occupational functioning and daily activities. The entire contents of the paper claims file and Virtual VA electronic folder must be made available to the VA audiological examiner, and the examination report should expressly note that such evidence was reviewed. That report should also note the results of all indicated tests, including an audiological evaluation and speech discrimination (Maryland CNC) testing conducted in accordance with 38 C.F.R. § 4.85. In addition to objective test results, the examination report should include a full description of the functional effects caused by the Veteran's hearing loss disability, to include for example, to what extent his hearing loss decreases his functioning in terms of performing his daily activities (such as the ability to communicate effectively with other people) as well as the impact of the hearing loss on his occupational functioning as a restaurant manager. 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. 3. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). _________________________________________________ MICHAEL MARTIN 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).