Citation Nr: 1800314 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 15-37 863 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to January 1952. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2015 rating decision in which the RO denied the Veteran's claim for an increased (compensable) rating for bilateral hearing loss. In August 2015, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2015. In October 2016, a supplemental SOC (SSOC) was issued, reflecting the continued denial of the Veteran's increased rating claim. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. Also, this appeal has been advanced on the Board's docket, pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on her part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. Specifically, the record reflects that there are potentially pertinent records outstanding. In particular, a November 2015 VA audiology clinic note reveals that the Veteran was seen for a hearing evaluation, and that audiometric testing for pure tone thresholds was conducted. While the note indicates that pure tone thresholds revealed moderate to moderate/severe hearing loss bilaterally, and that evaluation results were also available in the "AUDIOGRAM DISPLAY" found in the CPRS tools menu, the claims file contains no such audiogram or audiometric testing results. Significantly, the note also indicated that there was not "a significant change in hearing as compared to the 2014 audio examination." In this regard, the Veteran submitted a December 2014 private audiology report that indicates higher pure tone thresholds than those found on the VA hearing loss examination reports of record (conducted in March 2015 and September 2016), but speech discrimination scores were obtained utilizing the NU-6 word test. See 38 C.F.R. § 4.85(a) (noting that an examination for hearing impairment for VA purposes must include a Maryland CNC controlled speech discrimination test). Additionally, the claims file reflects that the Veteran has been receiving treatment for his hearing loss from the Minneapolis VA Health Care System (HCS), and that records from these facilities dated though May 2016 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the AOJ should obtain from the Minneapolis VA HCS a copy of the above-referenced November 2015 VA audiogram (or other document reflecting those audiometric testing results), as well as all pertinent, outstanding records of evaluation and/or treatment of the Veteran since May 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2017) with regard to requests for records from Federal facilities. Also, to ensure that all due process requirements are met, and the record is complete, while this matter is on remand, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159. 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 (to include further examination and testing, if appropriate) prior to adjudicating the claim on appeal. The AOJ's adjudication of the claim should include consideration of whether "staged rating" of the Veteran's bilateral hearing loss-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Minneapolis VA HCS a copy of the above-referenced November 2015 VA audiogram (or other document reflecting those audiometric testing results), as well as all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since May 2016. Follow the procedures of 38 C.F.R. § 3.159 as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim 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 she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her 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. 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include further examination and testing, if appropriate), adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority (to include consideration of whether "staged rating" of the disability is appropriate). 6. If the full benefit sought on appeal remains denied, furnish to the Veteran and her representative an SSOC 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 benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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. §§ 5109B, 7112 (2012). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).