Citation Nr: 1613755 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 13-01 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable evaluation for service-connected bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1971, with service in Vietnam from September 1970 to To September 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, that granted service connection for bilateral hearing loss disability and rated the disability as noncompensable. The Veteran disagreed with the noncompensable rating and perfected an appeal. Jurisdiction over this claim has been changed to the Columbia, South Carolina RO. The Veteran provided testimony before the undersigned Veterans Law Judge at a Travel Board Hearing held at the Columbia RO in February 2016. A copy of the transcript is of record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's review of the record reveals that further development is warranted. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014); 38 C.F.R. § 3.159(c) (4) (2015). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last evaluated for his service-connected bilateral hearing loss disability in February 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time if an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, during the Veteran's February 2016 hearing, he credibly testified that he felt that the last examination report was not an accurate portrayal of his current hearing loss disability, and that that his hearing had gotten progressively worse since the examination. Therefore, the Veteran should be afforded an examination to determine the current severity of his hearing loss disability. It is noted that the Veteran referenced in his substantive appeal form 9 that the RO did not consider some obvious facts that he felt justified a higher rating. To that end, at the hearing, he testified that he has a Bone Anchored Hearing Aid (BAHA) device to help with his hearing. He feels this should be considered an additional factor in his disability rating. He reported that part of the device is implanted in his skull and the other part attaches to the outside on his scalp. He explained that the device helps but also has a negative impact on his quality of life. Nevertheless, he estimates that he has zero hearing ability in his left ear without the device. At the hearing, he submitted additional records dated from 2009 through 2011 from the Sidney P. Lipman, M.D., the physician who implanted the device. The VA examination should address any additional factors impacting his daily functioning presented by the BAHA device. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity and effect of his bilateral hearing loss disability on his occupational functioning and daily activities, noting any additional effects presented due to the BAHA device. All indicated tests should be conducted. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss disability, including specifically the impact of any such effect on the Veteran's employability. The examiner should also address whether, and to what extent, the Veteran's hearing loss disability decreases his ability to communicate effectively with other people. A detailed explanation of any opinions reached should be provided. 2. Readjudicate the Veteran's claim, to include consideration of whether a referral for an extraschedular evaluation is necessary. If the benefit sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 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 2014). _________________________________________________ BETHANY L. BUCK 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).