Citation Nr: 1805509	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  12-20 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an increased disability evaluation for right ear eustachian tube dysfunction, initially rated as noncompensable.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1997 to July 2000.
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In the November 2010 rating decision, the RO granted service connection for right ear eustachian tube dysfunction and assigned a noncompensable disability evaluation, effective July 8, 2010.

In a June 2012 rating decision, the RO granted an earlier effective date of October 22, 2009 for the grant of service connection for right ear eustachian tube dysfunction.

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


REMAND

Based on a review of the documents in the Veteran's claims file, it appears that the RO did not consider the most recent evidence of record pertaining to the claim of entitlement to an increased, compensable disability rating for the service-connected right ear eustachian tube dysfunction.  Additional evidence, including VA medical records dated February 2014 through August 2017 and a September 2017 VA examination report have been associated with the Veteran's claims file.  However, the most recent supplemental statement of the case was issued in September 2016.  A review of the electronic claims folder does not show that that the Veteran or his representative waived consideration of that evidence by the RO in the first instance.  See 38 C.F.R. § 20.1304(c) (any pertinent evidence submitted by the appellant or his representative must be referred to the agency of original jurisdiction for initial review, unless this procedural right is waived by the appellant or his representative, or unless the Board determines the benefit sought can be allowed on appeal without such a referral).  

As a result, the RO must consider all evidence pertaining to the appellant's claim on appeal in the first instance.   Therefore, the claim of entitlement to an increased, compensable disability rating for the service-connected right ear eustachian tube dysfunction must be remanded for this procedural step to be completed.  See 38 C.F.R. § 19.31(c) (the agency of original jurisdiction is to issue a supplemental statement of the case when, pursuant to a Board remand, it develops evidence or cures a procedural defect).

Accordingly, the case is REMANDED for the following action:

After completing any additional notification or development deemed necessary, the RO should also readjudicate the Veteran's claim for an increased disability evaluation for right ear eustachian tube dysfunction.   

The RO must consider all of the evidence received since the issuance of the September 2016 supplemental statement of the case.  The RO should also undertake any additional development deemed warranted in consideration of all evidence of record.  

If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

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 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).







_________________________________________________
GAYLE E. STROMMEN
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).