Citation Nr: 1342663 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 10-28 746 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to a higher (compensable) initial rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1970. This appeal to the Board of Veterans' Appeals (Board) is from a February 2010 rating decision by the RO in St. Paul, Minnesota, that granted service connection and a noncompensable rating for bilateral hearing loss. The Veteran appealed for a higher rating. 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 Regrettably, the Board finds that additional development is necessary prior to appellate review. A rating for hearing loss is determined by a mechanical, meaning nondiscretionary, application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The RO has rated the Veteran's bilateral hearing loss as noncompensably disabling, and he contends that a higher rating is warranted. The Veteran underwent a VA compensation examination in January 2010 in connection with his initial claim for service connection for bilateral hearing loss. Audiometric testing was performed, but the examiner specifically stated that the test results were inconsistent and unreliable, and "...should not be used for rating purposes. The veteran needs to be re-tested." The examiner also recommended an ear, nose and throat (ENT) consultation, which was not done. The Board finds that this examination was inadequate for rating purposes, and thus another VA examination must be conducted in order to obtain valid audiometric findings and an ENT consultation. See 38 C.F.R. § 4.2 (If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The Veteran also contends that his hearing loss significantly affects his ability to hear conversation whenever there is background noise. On remand, the VA examiner should be asked to comment on the effects of this disability on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Pertinent ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have evaluated or treated him for hearing loss since February 2010. After obtaining any necessary authorization, obtain all identified records that are not duplicates of those already in the claims file. 2. After obtaining the available records, schedule another VA audiological examination and an ENT examination to ascertain the severity of the Veteran's bilateral hearing loss. All necessary diagnostic testing and evaluation should be performed to make this determination. The claims file must be provided to and reviewed by the examiner(s). *In particular, the examiner is specifically requested to fully describe the effects of the Veteran's hearing loss on his occupational functioning and daily activities. See Martinak, supra. The United States Court of Appeals for Veterans Claims (Court) held in Martinak that, in addition to dictating objective test results, an evaluating VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The examiner must discuss the underlying medical rationale for all opinions provided, if necessary, citing to specific evidence in the file. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, will have adverse consequences on this claim. See 38 C.F.R. § 3.655. 3. If a higher initial rating is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give him an opportunity to respond before returning the file to the Board for further appellate consideration of this claim. The appellant 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). _________________________________________________ K. PARAKKAL 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).