Citation Nr: 1641548 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 15-07 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1958 to August 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, in an April 2015 correspondence, Dr. R.K. of the LI Center for ENT stated that he has treated the Veteran since 2009 for his service-connected bilateral hearing loss and tinnitus. He also indicated that the Veteran has dizziness associated with Meniere's disease. There are no records from Dr. R.K. associated with the Veteran's electronic claims folder. As there is evidence of missing relevant private treatment records, they should be obtained on remand. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. Second, the Veteran was last afforded an audiological VA examination in May 2014 where the examiner noted the current severity of the Veteran's hearing loss and tinnitus. However, in a July 2014 Notice of Disagreement, the Veteran alleged that the examiner did not properly examine him. Although there is no specific evidence that the examination is inadequate for rating purposes, there is evidence that the Veteran may suffer from dizziness which may be related to either service-connected disability and is not documented in the May 2014 examination report. Extraschedular consideration is available for symptoms not contemplated by the rating schedule. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his bilateral hearing loss disability and tinnitus. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). On remand, updated VA treatment records should be obtained and associated with the electronic claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he provide or authorize the release of records from Dr. R.K. at the LI Center for ENT and any other private facility where the Veteran has been assessed or treated for his bilateral hearing loss or tinnitus. See April 2015 VA Form 21-4138. If, after making reasonable efforts to obtain private records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain up-to-date VA treatment records pertaining to the Veteran and associate with the electronic claims file. 3. Then, schedule the Veteran for a VA audiological examination to assess the severity of his service-connected bilateral hearing loss disability and tinnitus. All necessary testing, to include complete audiometry and speech recognition, must be accomplished. The examiner must fully describe the effects of the disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The examiner should also note whether the Veteran suffers from dizziness associated with either the service-connected bilateral hearing loss or tinnitus. 4. Ensure the development outlined above has been accomplished, that the examination report is adequate, and then arrange for any additional development indicated. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. J. ALIBRANDO 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).