Citation Nr: 1753334	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-05 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to a compensable rating for left ear hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Grzeczkowicz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1971 to May 1979.  

This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  

In June 2017, the Veteran appeared and provided testimony at a Board hearing before the undersigned.  A transcript of that hearing is associated with the record.  The Veteran provided testimony at a February 2007 hearing before the regional office.  A transcript of the proceeding is associated with the claims folder.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Board finds that additional development is needed before the Veteran's compensable rating for hearing loss claim on appeal can be decided.  

The Veteran is seeking higher disability ratings for his service connected left ear hearing loss.  Review of the claims file reveals that the symptoms he testified to at his June 2017 hearing indicate a worsening of his hearing loss since his last VA examination in August 2016.  As there may have been significant changes in the service-connected left ear hearing loss since the last VA examination, and to ensure that his current complaints are sufficiently considered by a VA examiner, the Board finds that a contemporaneous examination is needed.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); see Allday v. Brown, 7 Vet. App. 517, 526   (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination- particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating).

As the evidence reflects a possible worsening of the Veteran's left ear hearing loss since the last VA examination, a new examination is needed to determine the current level of severity of this disability.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the Board finds that a new examination is warranted to determine the nature and severity of the Veteran's service-connected left ear hearing loss.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected left ear hearing loss.  The claims file must be made available to the audiologist for review.  All indicated tests and studies, including audiological testing, should be performed, and the examiner should review the results of any testing prior to completing the report. 

If valid audiometric results cannot be obtained the audiologist should indicate (with explanation) whether such is due to some circumstance unique to the Veteran that renders him incapable of providing valid responses (in which case it should be determined whether there are any possible accommodations that would address the problem) or whether it is due to secondary gain and/or failure to cooperate.

2.  After completing all indicated development, readjudicate the claim.  If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period 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).




____________________________________________
THOMAS H. O'SHAY
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) (2016).





Department of Veterans Affairs