Citation Nr: 1539142	
Decision Date: 09/14/15    Archive Date: 09/24/15

DOCKET NO.  11-25 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent prior to May 21, 2014 and in excess of 30 percent from then onward for service-connected bilateral hearing loss.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).
  

WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

N.K., Associate Counsel



INTRODUCTION

The Veteran had active service from December 1965 to December 1967.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  

The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in May 2015.  A transcript of the hearing is of record.  

During the pendency of the appeal, a November 2014 rating decision increased the Veteran's bilateral hearing loss evaluation from 10 percent to 30 percent, effective May 21, 2014.  Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, the Veteran's claim for an increased rating for hearing loss remains on appeal.  

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


REMAND

VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2014). 

At the videoconference hearing before the Board in May 2015, the Veteran noted that his recent audiometric evaluations showed that his service-connected bilateral hearing loss has worsened since his grant of benefits in November 2009.  Furthermore, the Veteran testified that since his most recent VA examination in May 2014 his bilateral hearing has worsened.  Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of this disability.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 

It is also noted that in an April 2014 rating decision, the Milwaukee RO denied a claim for entitlement to service connection for posttraumatic stress disorder (PTSD).  The Veteran filed a notice of disagreement in April 2015, which was received within a year of the rating decision.  As such, a statement of the case must be issued.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiometric examination to determine the current severity of the service-connected bilateral hearing loss.  The examiner should fully describe the functional impact of the Veteran's service-connected bilateral hearing loss on his occupational functioning and daily activities.

2.  Issue a statement of the case on the claim for service connection for PTSD.  The Veteran and his representative should be informed of the time period to perfect his appeal of these issues to the Board.  This issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal.

3.  Then readjudicate the appeal.  If the claim remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response.

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 2014).

_________________________________________________
MATTHEW W. BLACKWELDER
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) (2015).