Citation Nr: 1804178	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  13-33 941	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a compensable rating for a left ear hearing loss disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse, E. B.


ATTORNEY FOR THE BOARD

L. Pelican, Counsel


INTRODUCTION

The Veteran served on active duty in the Army from December 1967 to December 1969, with service in the Republic of Vietnam from May 1968 to May 1969.  The Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal.

This case comes before the Board of Veterans' Appeals (the Board) from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in October 2015.  A transcript of that proceeding has been associated with the claims file.

This case was remanded by the Board in March 2016 for additional development.  

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

The Veteran was last afforded a VA audio examination in April 2016.  According to a March 9, 2017 VA primary care note, the Veteran reported his left ear hearing loss had worsened despite the use of hearing aids.  The clinician indicated that an audio consultation should be scheduled to obtain an audiogram.  Review of the record indicates that a new audiogram has not been obtained.  Given the Veteran's reports of worsening of his disability, remand is necessary to afford the Veteran a new audio examination and obtain any outstanding VA and private medical records.

Additionally, the Board acknowledges the contention made in the August 2017 appellate brief that the AOJ was required to refer the Veteran's claim to the Director of the Compensation Service for extraschedular consideration by virtue of the Board's March 2016 remand instructions.  However, the remand directive in question stated that the AOJ "may" consider whether referral of the Veteran's claim for extraschedular consideration was warranted.  The directive was discretionary in nature, and it is the prerogative of the AOJ to make that determination.  Thus, the AOJ's decision not to do so is not contrary to the Board's March 2016 remand instructions.

Accordingly, the case is REMANDED for the following actions:

1.  Take appropriate action to obtain VA treatment records from April 2017 to present.  

2.  With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claim.

3.  Schedule the Veteran for an audiological examination to determine the current severity of his service-connected left ear hearing loss disability.  The examiner is requested to fully describe the functional effects caused by the Veteran's hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

4.  Thereafter, readjudicate the issue on appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case.  The Veteran should be afforded the applicable time period in which 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. §§ 5109B, 7112 (2012).



_________________________________________________
MICHAEL A. PAPPAS
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 your appeal.  38 C.F.R. § 20.1100(b) (2017).