Citation Nr: 1800603 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-36 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for bilateral hearing loss prior to June 1, 2016 and in excess of 50 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2011 rating decision, service connection for bilateral hearing loss was granted and a 20 percent rating was assigned effective November 12, 2010. The Veteran filed a notice of disagreement in October 2012. In a June 2016 decision review officer decision, an increased 50 percent rating was assigned effective June 1, 2016. A Statement of the Case was issued in July 2016. In his substantive appeal (VA Form 9) submitted in July 2016, the Veteran indicated that he was only appealing the effective date of his increase to 50 percent. The RO then issued a Supplemental Statement of the Case in August 2016 denying the issue of an effective date earlier than June 1, 2016 for the assignment of a 50 percent evaluation for bilateral hearing loss. The matter was certified to the Board as including claims of entitlement to an initial increased rating for bilateral hearing loss and entitlement to an earlier effective date for the 50 percent evaluation for bilateral hearing loss. Regarding the question of an earlier effective date for the assignment of the 50 percent rating for bilateral hearing loss, because the Veteran's appeal originated from the October 2011 rating decision that granted service connection, he is actually appealing the original assignment of the disability evaluation following an award of service connection. Therefore, the issue on appeal is entitlement to an initial rating in excess of 20 percent for bilateral hearing loss prior to June 1, 2016, and in excess of 50 percent thereafter, which encompasses the issue of an effective date earlier than June 1, 2016 for the assignment of a 50 percent disability rating. The June 2016 decision review officer decision, which increased the initial disability rating for bilateral hearing loss from 20 to 50 percent, effective June 1, 2016, remains on appeal because the staged ratings assigned remain less than the maximum available benefit awardable for each period. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has recharacterized the issue on appeal as reflected on the title page. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, remand is necessary in this case. VA treatment records dated from April 2011 to March 2016 include a January 2012 audiology consult report which indicates that the Veteran had an audiometric evaluation that day at the Redding outpatient clinic, consisting of pure tone testing and speech discrimination. A February 2014 report notes that an audiological evaluation was conducted and pure tone testing was completed for the right ear only. Records from February 2016 also note that the Veteran underwent an audiometric evaluation, and while the pure tone thresholds were listed, a Maryland CNC word recognition score of 70 percent was listed for only the right ear. However, the actual reports of the audiometry which were conducted on these dates are not of record and could possibly contain information that supports a higher rating for the Veteran's bilateral hearing loss disability. Accordingly, they should be obtained on remand, in order to assist the Veteran with his claim pursuant to 38 C.F.R. § 3.159. VA medical records are constructively of record and must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). In addition, updated VA treatment records from July 2016 should be obtained and associated with the claims file, as well as from any private facilities where the Veteran may have received treatment. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's January 2012, February 2014, and February 2016 VA audiometric reports from the Redding OPC. The actual report which lists the Veteran's pure tone audiometric thresholds and speech discrimination results, etc., must be obtained and associated with the claims file. If it is unclear from the audiometry results whether speech discrimination testing was done using the Maryland CNC word list, please seek clarification regarding what type of speech discrimination testing was done. 2. Secure for the record any outstanding private treatment records, if any. The Veteran should be asked to provide identifying information regarding all recent private treatment he has received and to submit authorizations for VA to secure complete clinical records of the evaluations and treatment from each private provider identified (any not already in the record). 3. Obtain and associate with the claims file the Veteran's VA treatment records dated since July 2016, including the results of any audiometry testing completed during this time period. If it is unclear from any audiometry results whether speech discrimination testing was done using the Maryland CNC word list, please seek clarification regarding what type of speech discrimination testing was done. 4. After undertaking any other development deemed appropriate, readjudicate the Veteran's claim on appeal. If the benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B. _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).