Citation Nr: 1633652 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 10-27 681 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to an initial, compensable disability rating prior to September 15, 2010, and a disability rating greater than 20 percent from that date, for service-connected bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision in which the RO granted the Veterans claim for service connection for bilateral hearing loss, assigning an initial zero percent (noncompensable) disability rating, effective October 1, 2008; but denied service connection for tinnitus. In August 2009, the Veteran filed a notice of disagreement (NOD) with the assigned initial disability rating for the service-connected bilateral hearing loss, and a Statement of the Case (SOC) was issued in January 2010. The Veteran filed a substantive appeal in June 2010. In March 2011, the RO increased the disability rating for the Veteran's service-connected bilateral hearing loss to 20 percent, effective September 15, 2010. As that grant did not represent a total grant of benefits sought on appeal, a claim for higher ratings at each stage remains viable before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In November 2013, the Board remanded the claims on appeal for additional development. These matters have now been returned to the Board. The Veteran's claims file has been converted into a paperless, electronic claims file via the Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. All records in such files have been reviewed by the Board. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the record reflects that, during the pendency of this appeal, the Veteran initiated, but did not timely perfect, an appeal of a June 2013 denial of service for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). In August 2016, the Veteran filed a new claim for service connection for PTSD. As the request to reopen the previously denied claim has not been adjudicated by the RO, such matter is not properly before the Board, and is referred to the AOJ for appropriate action. REMAND Unfortunately, the Board finds that further AOJ action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and the Board itself commits error in failing to ensure this compliance. Stegall v. West, 11 Vet. App. 268 (1998). In November 2013, the Board remanded the claims so that the Veteran could be afforded a VA examination to obtain information in order to determine the current level of severity of the Veteran's service-connected hearing impairment and for an etiological opinion pertaining to his claimed tinnitus disability. Among other things, the Board instructed that the claims file and any treatment records contained in Virtual VA be made available to and reviewed by the examiner in conjunction with conducting an examination of the Veteran. The requested VA audiology examination was conducted in February 2014; however, in the report of that examination, the examiner indicated that the VA claims file was not reviewed, and that no records were reviewed in conjunction with the examination of the Veteran. With specific regard to the issue of service connection for tinnitus, the examiner indicated that a medical opinion regarding the etiology of the Veteran's tinnitus could not be provided without resorting to speculation because the claims file was not available for review. With specific regard to the claim for higher ratings for service-connected bilateral hearing loss, the Board's remand directive regarding review of the claims file is consistent with the principle in the rating schedule that disabilities be evaluated in relation to their histories. See 38 C.F.R. § 4.1 (2015). As such, the AOJ's failure to ensure that the contents of the Veteran's claims file were made available to the VA audiology examiner-and the apparent impacts of such failure-necessitate another remand of these matters. See Stegall, supra. Also with regard to the matter of higher disability ratings for service-connected bilateral hearing loss, the Board notes that the February 2014 VA examiner provided results of audiometric testing of the Veteran, but then indicated that the pure tone test results were not valid for rating purposes, as they were inconsistent with organic hearing loss. The examiner did not further explain what was meant by the fact that the findings were inconsistent with organic hearing loss, and why such findings were invalid for rating purposes. As such, the results of testing on examination coupled with the opinion of the VA examiner render the findings nonresponsive to the Board's November 2013 remand instructions. See Stegall, 11 Vet. App. at 271; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Under these circumstances, the AOJ should arrange for the Veteran to undergo another VA audiology examination-with appropriate testing-by an appropriate professional. The Veteran is hereby advised that a failure to report to the scheduled examination, without good cause, may result in the denial of his claims. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the Veteran and death of an immediate family member. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) medical records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The AOJ's adjudication of the claims for higher ratings for hearing loss should include consideration of whether any further staged rating of the disability is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159 . All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA audiology examination by an appropriate professional. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the audiologist/physician, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All appropriate test and studies-in particular, audiometry and speech discrimination testing-should be accomplished, with all results made available to the examiner prior to the completion of his or her report. With respect to hearing loss, for each ear, the examiner should provide numeric interpretation of any hearing tests/audiograms conducted. The examiner should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz and then provide the average pure tone threshold for these four frequencies. The reported numeric values and speech recognition scores (Maryland CNC test) must be in conformity with the requirements of 38 C.F.R. § 4.85 . If test results are considered invalid or deemed an inaccurate depiction of the severity of the Veteran's hearing loss, such conclusion must be explained in detail specifying why valid and reliable audiometric data could not be obtained. With respect to tinnitus, based on a review of the claims file, findings and opinions from current and prior clinical examinations and the Veteran's contentions, the examiner should provide an opinion addressing whether it is at least as likely as not (a 50 percent or greater probability that current tinnitus: (a) Had its onset during service or is s etiologically related to an event, injury, or disease in service, to include acoustic trauma related to military noise exposure; or if not, (b) Was caused (in whole or in part) or is or has been aggravated (worsened beyond natural progression) by the service-connected bilateral hearing loss. If the Veteran's current tinnitus is or has been aggravated by the service-connected bilateral hearing loss, the examiner should also indicate the extent of such aggravation, identifying the baseline level of disability before the aggravation. In providing the requested opinion(s), the examiner must consider and discuss all pertinent medical and other objective evidence, to include all lay assertions. In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Notably, the absence of evidence of treatment for tinnitus in the Veteran's service treatment records should not, alone, serve as the basis for a negative opinion. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should clearly so state and explain why, to include identifying what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, 11 Vet. App. at 268. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the g claims on appeal in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) after the last adjudication) and legal authority (to include, with respect to the claim for higher ratings for bilateral hearing loss, consideration of whether any further staged rating of the disability is appropriate). 6. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).