Citation Nr: 1514353	
Decision Date: 04/02/15    Archive Date: 04/09/15

DOCKET NO.  11-23 800A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss, on appeal from an initial grant of service connection.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel 


INTRODUCTION

The Veteran served on active duty from July 1961 to April. 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office RO) in Houston, Texas.  In that action, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective January 6, 2011.  

In September 2014, the Board remanded the appeal for additional development.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In August 2014, the Veteran appointed the Texas Veterans Commission as his representative, replacing the Disabled American Veterans.  

The December 2014, supplemental statement of the case (SSOC) was not sent to the Veteran's former representative; and it does not appear that the current representative had an opportunity to represent the Veteran in his appeal at the AOJ.  The Veteran is entitled to representation of his choice at all levels of the appeal.  38 C.F.R. § 3.103(e) (2014).

Additionally, when the Veteran originally submitted his claim for service connection for bilateral hearing loss, he informed the Houston Regional Office that he had undergone a hearing test/evaluation at the Richmond VA Outpatient Clinic in Richmond, Texas.  He specifically stated that he had been tested on December 22, 2010, and asked that the AOJ obtain results.  The record shows that the examination results were obtained and included in the file for review.  However, the actual audiometric numeric test results, in hertz, were not obtained even though the evaluation report indicates that such numeric results were produced and used by VA personnel in their diagnosis.  VA has a duty to obtain those records.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ should obtain the audiological numerical results from the December 22, 2010, evaluation.  

If the record cannot be obtained, advise the Veteran of the missing record, the efforts made to obtain it, and what further actions will be taken with regard to his appeal. 

2.  The AOJ should afford the Veteran's current representative the opportunity to provide evidence and argument on his behalf and provida the representative with the SSOC issued December of 2014.

3.  If the benefit sought on appeal is not fully granted, a SSOC should be issued.  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 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 2014).

_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).