Citation Nr: 1617716 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 10-37 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Sybil Ann Brown, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran had active duty from January 1965 to December 1968 as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Navy Reserves from November 1971 to January 1998. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2008 rating decision of the North Little Rock, Arkansas Regional Office (RO) of the Department of Veteran's Affairs (VA), which assigned the Veteran a 0 percent rating for his bilateral hearing loss. The Veteran submitted a notice of disagreement (NOD) with this determination in February 2009, and timely perfected his appeal. The Veteran appeared before the undersigned at a travel board hearing in April 2011. A transcript of the proceeding is of record. The Board remanded the instant matter in August 2013 for further development. In September 2013, the RO assigned the Veteran a 10 percent rating for his bilateral hearing loss. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). Therefore, such an increased rating is not a full grant of the benefit sought on appeal, and the matter was returned to the Board for further adjudication. The Board notes that additional evidence, namely a statement from the Veteran's private doctor and audiogram dated September 2013, was submitted which was not previously considered by the agency of original jurisdiction (AOJ). The Veteran's representative at the time, waived initial AOJ consideration of this evidence in December 2015. See 38 C.F.R. § 20.1304(c) (2015). The Board may properly consider such evidence. The Board further notes that additional evidence was associated with the claims file after the issuance of the September 2013 post-remand rating decision, namely a VA examination dated December 2015, which was not previously considered by the AOJ. The Board sent a notification letter to the Veteran in March 2016 requesting that the Veteran waive initial AOJ consideration of this evidence so that the Board could proceed with adjudication. However, in April 2016, the Veteran submitted a notice that he did not waive initial AOJ consideration of the evidence and requested that the evidence be remanded back to the AOJ for consideration. The Board notes that, in accordance with an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) filed in July 2008, the Veteran was originally represented in this appeal by The American Legion. However, in December 2015, the Veteran submitted an Appointment of Individual as Claimant's Representative (VA Form 21-22a), in favor of attorney Sybil Ann Brown. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless files. 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; 38 C.F.R. § 3.159. As noted in the Introduction, following the AOJ issuance of the September 2013 post-remand rating decision, a December 2015 VA examination was conducted. In March 2016, the Board mailed the Veteran an Additional Evidence Response Form to clarify whether he wished to waive initial AOJ consideration of the evidence. In April 2016, the Veteran requested that the appeal be remanded for AOJ review of the additional evidence. Accordingly, this matter must be remanded in order for the AOJ to review the evidence received since the issuance of the September 2013 post-remand rating decision. While on remand, the Veteran should be given an opportunity to identify any records relevant to the remanded claim that have not been obtained. Thereafter, all identified records should be obtained Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claim. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include, the December 2015 VA examination received after the issuance of the post-remand rating decision issued in September 2013. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ MARJORIE A. AUER 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).