Citation Nr: 1614985	
Decision Date: 04/13/16    Archive Date: 04/26/16

DOCKET NO.  10-29 667	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel







INTRODUCTION

The Veteran served on active duty from October 1971 to October 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The April 2009 rating decision, inter alia, denied service connection for a right ear hearing loss disability, and granted service connection for a left ear hearing loss disability with an initial evaluation of 10 percent.  In December 2013, the Board granted service connection for a right ear hearing loss disability, and, as a result, combined the Veteran's claim into an initial rating for bilateral hearing loss in excess of 10 percent.  Such was remanded to the Agency of Original Jurisdiction (AOJ), where, in December 2013, an initial 40 percent rating for bilateral hearing loss was assigned, effective August 15, 2008.

The Board notes that in January 2014, the AOJ issued a supplemental statement of the case denying an initial rating in excess of 10 percent for bilateral hearing loss.  Such appears to have been issued in error in light of the December 2013 rating decision.

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).

In this regard, the Veteran submitted a February 2014 private audiological examination.  Unfortunately, it is unclear whether such examination utilized Maryland CNC testing, and therefore the Board cannot rely on such examination for rating purposes.  38 C.F.R. § 4.85.  On remand, the RO will be asked to attempt to clarify whether this test was used.

If the Maryland CNC word test was not used in the private audiological examination in February 2014 or if no clarification is obtained, the RO should schedule the Veteran for an examination to assess the current nature and severity of such service-connected disability, since the puretone threshold results of the February 2014 private record suggest some worsening may have occurred.

Accordingly, the case is REMANDED for the following action:

1.  Contact the audiologist that conducted the February 2014 private evaluation if possible, requesting information from the Veteran if necessary.  Ask her to clarify whether the Maryland CNC Word Test was used to assess the Veteran's hearing discrimination.

2.  If the Maryland CNC Word Test was not used in the February 2014 private evaluation or if clarification is not obtained, schedule the Veteran for an audiological examination to determine the current severity of his bilateral hearing loss disability.  

3. After completing the above, the Veteran's claim should be readjudicated.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

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).



_________________________________________________
R. FEINBERG
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).