Citation Nr: 1410195 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-23 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an compensable rating for a left shoulder scar, identified as a residual of a shell fragment wound. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to December 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied a compensable rating for a left shoulder scar and granted noncompensable service connection for right ear hearing loss. While the June 2010 rating decision also denied service connection for left ear hearing loss, this determination was later found to contain clear and unmistakable error. Consequently, a July 2011 rating decision awarded service connection and assigned a noncompensable rating for the hearing loss associated with the left ear. Accordingly, as the Veteran is now in receipt of service connection for bilateral hearing loss, and as he has pursued an appeal with respect to both ears, his claim is most aptly characterized as reflected on the title page of this decision. In December 2011, the Veteran testified at a hearing before the undersigned, a transcript (Tr.) of which is of record. During that proceeding, the undersigned observed that the Veteran also had a pending claim for service connection for an acquired psychiatric disorder, which had not been adjudicated in the first instance. See Board Hearing Tr. at 2-3. However, a review of the Veteran's Virtual VA efolder reveals that his psychiatric claim has since been denied in a June 2012 rating decision, which he has not appealed. As such, no further action is necessary with respect to that issue. The issue of entitlement to an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In August 2011, the Veteran submitted a VA Form 9 perfecting an appeal as to the issue of entitlement to a compensable rating for a left shoulder scar, as identified in a July 2011 statement of the case. 2. At the December 2011 hearing before the undersigned, the Veteran indicated that he wished to withdraw his appeal as to the noncompensable rating assigned for his left shoulder scar. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal of the issue of entitlement to a compensable rating for a left shoulder scar have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002 & 2013); 38 C.F.R. §§ 20.202, 20.204 (2013). ORDER The issue of entitlement to a compensable rating for a left shoulder scar has been withdrawn from appeal and is accordingly dismissed. REMAND The Veteran contends that his service-connected hearing loss is worse than contemplated by his current noncompensable rating and that a higher evaluation is thus in order. However, before the Board may reach the merits of that claim, further development is needed. See 38 C.F.R. § 19.9 (2013). Specifically, efforts should be undertaken to obtain a copy of a December 2009 VA audiological test, which is referenced in the Veteran's December 2011 hearing transcript and the report of his April 2010 VA ear, nose, and throat (ENT) examination, but is not associated with his claims file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, as the Veteran's most recent VA audiological examination revealed worsening bilateral hearing loss, and as he has since requested a new examination to assess the current nature and severity of that service-connected disability, he should be afforded such an opportunity on remand. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all relevant treatment records generated by the Northport, New York, VA Medical Center prior to June 24, 2010, and after June 22, 2012 (the dates of the only VA records that have yet been associated with the claims file). In particular, efforts should be made to obtain a copy of a December 2009 VA audiological test, which is referenced in the Veteran's December 2011 hearing transcript and in the April 2010 VA ENT examination report. See Board Hearing Tr. at 5, 9 (noting that the Veteran was prescribed hearing aids after undergoing an initial VA hearing test, which preceded his February 2010 VA audiological examination and April 2010 VA ENT examination); see also April 30, 2010, VA ENT examination report (noting that the Veteran had a VA audiological examination in February 2010 and that his "last hearing test prior to that . . . was done in December 2009"). If any requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran should be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item (1), schedule the Veteran for an audiological examination to determine the current severity and effect of his service-connected hearing loss and the impact of that disability on his daily living activities and occupational functioning. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA and/or the Veterans Benefits Management System (VBMS)), and a copy of this REMAND should be reviewed in conjunction with the examination and the examiner's report should note that review. That report should also note the results of all indicated tests, including an audiological evaluation and speech discrimination (Maryland CNC) testing conducted pursuant to 38 C.F.R. § 4.85. In addition to objective test results, the VA examination report should include a full description of the functional effects posed by the Veteran's bilateral hearing loss, in particular the extent to which that service-connected disability interferes with his performance of daily living activities, such as telephone conversations and face-to-face interactions, and its impact on his occupational functioning. In this regard, the examiner should expressly take into account the Veteran's assertions of being unable to understand words spoken in crowded settings, including restaurants and theaters, where there is considerable background noise. See Board Hearing Tr. at 3-4. All findings must be thoroughly explained, and an adequate rationale for any conclusions reached should be set forth in the examiner's report. If any requested opinion cannot be provided without resort to speculation, the examiner should so state, and provide a supporting explanation as to why an opinion cannot be provided without resort to speculation. 3. Then, after undertaking any additional needed development, the Veteran's claim for an initial compensable rating for bilateral hearing loss should be readjudicated in the context of the entire record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. 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). _________________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs