Citation Nr: 1752631 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 16-07 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to February 1946 and September 1950 to August 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the San Juan Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, service connection was granted for bilateral sensorineural hearing loss and a 20 percent rating was assigned, effective March 4, 2014. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Regrettably, a remand is necessary for further evidentiary development. Specifically, a remand is required in order to provide the Veteran with a new VA examination. The Veteran was afforded a VA audiometric examination in June 2015. This evaluation resulted in the currently assigned initial rating of 20 percent for bilateral hearing loss. In his substantive appeal, dated in January 2016, the Veteran indicated that he was completely deaf. He appears to be asserting that his hearing loss has worsened since last examined by VA. Accordingly, the Veteran should be provided a new VA audiology examination to determine the current severity of his hearing loss and any resulting functional loss. 38 C.F.R. § 3.159(c)(4) (2017); Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board notes that the file contains an appointment of The American Legion as the Veteran's representative, executed in January 1983, in connection with an earlier claim for VA benefits. It does not appear that the Veteran has explicitly revoked this power of attorney. However, following submission of a claim for VA benefits in 2015, he was issued a May 2015 Veterans Claims Assistance Act of 2000 notice letter. At that time, he was told that VA had no record of him appointing a service organization or representative to assist him with his claim. He was informed that he could contact VA for a listing of recognized veterans' service organizations and/or representatives. Veterans service organizations could also help him. Also in the June 2015 letter informing the Veteran of his grant of compensation for hearing loss and tinnitus, he was once again provided information as to his right of representation if he so desired. He did not respond. While the case is in remand status, the RO should contact the Veteran to determine whether he previously revoked the power of attorney in favor of The American Legion or wishes to revoke the existing power of attorney or appoint another representative. He should be advised that unless he takes affirmative action, The American Legion will be recognized by VA as his representative. 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. The AOJ should contact the Veteran and advise him that, contrary to previous letters to him, his claims file contains an appointment of representative, dated in January 1983, appointing The American Legion as his representative before VA. It does not appear that he has revoked this power of attorney. Further advise him that he may continue representation with The American Legion, appoint another representative or proceed unrepresented. If he desires to change representation, he must take affirmative action. If he does not respond, he should be informed that The American Legion will be recognized as his representative going forward. 2. Following completion of the above, the AOJ should schedule the Veteran for a VA examination, to be performed by an appropriate examiner, to determine the current level of severity of his bilateral hearing loss and any functional effects resulting from such. It is imperative that the examiner carefully review the evidence of record. As to functional loss, the examiner is requested to assess the functional effects of the Veteran's bilateral hearing loss on his daily life. 3. The AOJ should then carefully review the claims file and ensure that all requested development was fully and accurately completed. Only after determining all remand directives have been completed, readjudicate the appeal for an initial rating in excess of 20 percent for bilateral hearing loss in light of all the additional evidence added to the record. If the appeal remains denied, provide the Veteran and any representative with a supplemental statement of the case and allow an appropriate time for response. (If no action is taken by the Veteran, The American Legion should be recognized as his representative.) Thereafter, the case should be returned to the Board for further appellate review, if in order. The appellant 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. §§ 5109B, 7112 (2014). _________________________________________________ BARBARA B. COPELAND 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) (2017).