Citation Nr: 1338837 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-47 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating higher than 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty for more than 20 years, including from August 1953 to August 1974. He appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2008 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted him service connection for right ear hearing loss, recharacterized his previously service-connected left ear hearing loss to resultantly include the additional service-connected hearing loss in this other ear, and assigned the newly characterized bilateral (left and right) hearing loss an initial 10 percent disability rating. As support for his claim for a higher rating, he and his daughter testified at a hearing at the RO in July 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. In September 2012, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. At the time, the appeal also included a claim of entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and major depression. But in an October 2013 rating decision since issued, on remand, the AMC granted that claim - assigning an initial 30 percent rating for the mental disorder retroactively effective from January 11, 2008, so back to the date of receipt of that claim. That claim therefore is no longer before the Board since the Veteran has not yet, in response, separately appealed either that initial rating or effective date. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). The remaining claim, for a higher rating for his bilateral hearing loss, has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). But another remand is required before deciding this claim. REMAND The Board sincerely regrets the further delay that will result from this additional remand of this claim, but the Board must ensure there is a complete record upon which to base a decision concerning this claim so the Veteran is afforded every possible consideration. In the prior September 2012 remand, the Board discussed why the reports of April 2008 and April 2011 VA compensation examinations and a June 2012 private audiogram were inadequate to rate the Veteran's bilateral hearing loss. Based on these inadequacies, the Board instructed the RO/AMC to provide the Veteran an opportunity to submit addendum findings from the June 2012 evaluation, specifically, results of Maryland CNC speech recognition testing since required by 38 C.F.R. § 4.85, and to schedule another VA audiological examination reassessing the severity of his service-connected bilateral hearing loss disability. The goal of that development was to determine whether, as the private audiogram had suggested, he is entitled to a higher rating, so additional compensation, for this disability. On remand, the Veteran submitted an addendum report from the June 2012 private audiologist, but, unfortunately, given that the speech discrimination results still do not conform to Maryland CNC testing standards, the findings remain inadequate for use in evaluating his service-connected disability. Also unfortunate is the fact that he failed to report for the VA audiological examination the AMC scheduled as another means of reassessing the severity of his disability and potential entitlement to a higher rating for it and greater compensation. Neither the physical claims file nor the electronic ("Virtual VA") file contains a copy of any notification of the examination, so it is not only unclear whether he received it, but also unclear whether, even if he did, he was advised of and understood the consequences of failing to report for the evaluation. See 38 C.F.R. § 3.655 (2013). Prior to rather recently, that being May 2013, the United States Court of Appeals for Veterans Claims (Court/CAVC) had held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while this appeal was pending, the higher Federal Circuit Court issued Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 2013). In Kyhn the Federal Circuit Court vacated the lower Court's Kyhn II decision, holding that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. In light of the Federal Circuit Court's ruling in Kyhn and the absence of verification that the Veteran received proper notice of his scheduled VA examination, his examination must be rescheduled and he provided the required notice of it. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Reschedule the Veteran's VA audiological examination to reassess the severity of his bilateral hearing loss. He again is advised that the reports of the VA and private audiological evaluations of record are inadequate to decide this claim and make this determination and that VA still needs appropriate evidence that his hearing loss has worsened to the point of justifying a higher rating. Explain the consequences of him failing to report for this rescheduled VA compensation examination, particularly in light of the noted inadequacies of the existing evidence of record. Also put a copy of the notification letter in his physical claims file or electronic ("Virtual VA") file. Have the examiner perform all necessary diagnostic testing and evaluation, including testing the hearing acuity in the required frequencies of 1000, 2000, 3000 and 4000 Hertz, performing the necessary Maryland CNC speech recognition, and describing the functional effects of the hearing loss on the Veteran's occupation and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). It is most essential the examiner discuss the underlying medical rationale for the opinion regarding the severity of this service-connected disability, if necessary citing to specific evidence in the file supporting conclusions. 2. Then readjudicate this claim in light of this and all other additional evidence. If a higher rating is not granted to the Veteran's satisfaction, send him and his representative another supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this remanded claim. 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). _________________________________________________ KEITH W. ALLEN 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).