Citation Nr: 1619200 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 13-05 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to April 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that denied a compensable rating for bilateral hearing loss. The case was later transferred to the St. Petersburg, Florida Regional Office (RO). In March 2016, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In April 2016, the Veteran filed a claim for entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral hearing loss and tinnitus. That issue is not before the Board at this time and is referred to the RO for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA audiological examination in November 2010. The diagnoses included bilateral high-frequency hearing loss and sensorineural hearing loss. Since that time, at a March 2016 Board hearing, the Veteran's representative specifically indicated that the Veteran's bilateral hearing loss had worsened since his last examination. Additionally, the Veteran has received treatment for his service-connected bilateral hearing loss subsequent to the November 2010 VA audiological examination. The Board observes that a March 2016 VA audiological evaluation report, as well as November 2013 and April 2016 audiological evaluation reports from St. Lukes Hearing Services, all indicate possible worsening of the Veteran's hearing acuity. Further, the Board notes those audiological evaluation reports, respectively, do not provide speech recognition scores as required pursuant to 38 C.F.R. § 4.85 (2015), and are therefore not adequate for rating purposes. The Board observes that the Veteran has not been afforded a VA examination, as to his service-connected bilateral hearing loss, in over five years. Additionally, the record clearly raises a question as to the current severity of his service-connected disability. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Finally, the Board notes that a December 2013 VA audiology note indicates that testing revealed a mild to severe sensorineural hearing loss from 2000 through 8000 Hertz in both ears. The examiner indicated that the Veteran's hearing was unchanged from his November 2010 VA audiological examination report, except for a 10 decibel decrease at 500 Hertz in the right ear. The examiner reported that the audiometric summary was available in the "Tools" section of the Veteran's Computerized Patient Record System (CPRS). Additionally, a prior August 2010 VA audiology consultation report notes that testing revealed hearing within normal limits sloping to severe sensorineural hearing loss in the right ear, and hearing within normal limits sloping to profound sensorineural hearing loss in the Veteran's left ear. The examiner reported that the audiometric summary was available in the "Tools" section of the Veteran's CPRS. The Board observes that the audiometric summaries mentioned by the examiners pursuant to the December 2013 VA audiology note and the August 2010 VA audiology consultation report, respectively, are not of record. As the actual audiological results are pertinent to the Veteran's claim, such reports should be obtained. 38 C.F.R. § 3.159(c)(2) (2014); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). See also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance). Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the December 2013 and August 2010 audiogram results referred to pursuant to the December 2013 VA audiology note and the August 2010 VA audiology consultation report, respectively. 2. Ask the Veteran to identify all medical providers who have treated him for hearing problems since April 2016. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims file. Document any unsuccessful efforts to obtain records, inform the Veteran of such, and advise him that he may obtain and submit those records. 3. Notify the Veteran that he may submit lay statements from individuals who may have first-hand knowledge, and/or were contemporaneously informed of the nature, extent, and severity of his hearing loss symptoms, as well as the impact of those symptoms on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected bilateral hearing loss. The entire claims file, including all electronic files, must be reviewed by the examiner. All indicated tests should be conducted and all signs and symptoms of the service-connected bilateral hearing loss should be reported in detail. Also, the examiner must fully describe the functional effects of the Veteran's hearing loss. The examination report must include a complete rationale for all opinions expressed. 5. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ STEVEN D. REISS 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).