Citation Nr: 1627741 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 10-29 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August 1970 through August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal also initially included the issue of the Veteran's entitlement to an increased disability rating for tinnitus, rated as 10 percent disabling. Although that issue was initially preserved for appeal by the Veteran in his timely July 2009 NOD, it was never perfected subsequently in a timely substantive appeal. Accordingly, the Board does not have jurisdiction over it. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA treatment records show that the Veteran was referred for audiological evaluation of his hearing loss in November 2009 and October 2014. Corresponding records indicate that audiometric tests were conducted; however, specific audiometric pure tone data from those tests are not reported in those records. The audiometric data from such testing is crucial information in determining the severity of the Veteran's hearing loss over the appeal period and in assigning a corresponding disability rating. As such, VA must make efforts to locate the audiometric pure tone data from the tests performed during VA treatment on November 30, 2009 and October 31, 2014 and associate it with the record. 38 C.F.R. § 3.159(c)(2). Also, the Veteran most recently underwent a VA examination of his hearing loss in November 2015. Consistent with regulations, audiometric pure tone and speech discrimination tests were conducted. The examiner did not, however, provide any discussion as to whether the Veteran's hearing loss caused any occupational impairment, and if so, the extent of such impairment. In the absence of such discussion, the November 2015 findings and opinions are incomplete. Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007) (stating that VA audiologists must fully describe the functional effects caused by a hearing disability in the final report of an examination in order to facilitate determinations regarding extra-schedular consideration). Under the circumstances, the Veteran should also be afforded a new VA examination of his hearing loss. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his hearing loss since November 2015. VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claim since November 2015, and if so, assist him in obtaining it. Any relevant VA treatment records dated from November 2015 to the present should be associated with the record. 2. Obtain the audiometric pure tone and speech recognition data from the audiological tests conducted during VA treatment on November 30, 2009 and October 31, 2014. If such efforts yield negative results, a notation to that effect should be noted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the development actions described above have been performed to the extent possible, the Veteran should be afforded a VA examination, with an appropriate examiner, to determine the current severity of his bilateral hearing loss and any associated functional loss. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed, including an interview of the Veteran; audiometric testing to determine pure tone thresholds for both ears at 1000, 2000, 3000, and 4000 Hertz; and speech recognition ability in both ears as determined via Maryland CNC test. The examiner should also identify any functional loss that is attributable to the Veteran's hearing loss, to include interference with activities of daily living and occupational functioning. A complete rationale should be given for all opinions and conclusions. Such rationale must include a discussion of all relevant findings from the examination and applicable medical principles. All findings, conclusions, and supporting rationale should be expressed in the report. 4. After completion of the above development, the issue of the Veteran's entitlement to a compensable disability rating for bilateral hearing loss should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ S. HENEKS 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).