Citation Nr: 1433167 Decision Date: 07/24/14 Archive Date: 07/29/14 DOCKET NO. 13-31 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable disability evaluation for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran appellant had active service in the United States Navy from June 1956 to June 1959. He subsequently became a member of the National Guard and served on active duty in the United States Army from October 1961 to August 1962, and from July 1991 to March 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation. The appellant is appealing the initial rating that was assigned. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. In addition to the paper claims file, there is an electronic file associated with the claim. The electronic file does currently contain evidence pertinent to the claim - namely, VA treatment records dated between February 2013 and May 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has indicated that his hearing loss has worsened since the February 2013 VA examination was conducted. He has submitted the report from private audiometric testing that was conducted in April 2013. The results of the private testing seem to indicate some worsening has occurred; however, the testing did not include Maryland CNC speech discrimination testing. In addition, the Veteran's representative requested a new examination in the July 2014 informal hearing presentation. The Board agrees that the Veteran should be afforded another VA examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain all of the appellant's outstanding pertinent VA medical treatment records, including copies of all audiogram results, and associate them with the claims file. Obtain all private records as well, if any. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for an audiometric examination to determine the current severity of his bilateral hearing loss, to include consideration of the effect of the Veteran's service-connected hearing impairment on his occupational functioning and daily activities. The entire claims file (i.e., the paper claims file and the electronic file) and this remand must be made available to the examiner for review in conjunction with the examination. The examiner must indicate that said review was accomplished. If the examiner does not have access to the electronic file, any relevant treatment records contained in the electronic file must be printed and associated with the paper claims file so they can be available to the examiner for review. 5. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the claim on appeal. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, to include 38 C.F.R. §§ 3.321, Martinak v. Nicholson, 21 Vet. App. 447 (2007); and Hart v. Mansfield, 21 Vet. App. 505 (2007). 6. If the benefit sought on appeal remains denied, provide the appellant and his representative with a Supplemental Statement of the Case (SSOC) and allow for an appropriate period of time for response. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).