Citation Nr: 1805599 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 15-10 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1961 to March 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the appeal is currently with the RO in Houston, Texas. 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) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that, following the issuance of the March 2015 Statement of the Case, and before the case was certified to the Board in December 2017, the AOJ obtained additional medical evidence, including pertinent VA treatment records. The appellate scheme set forth in 38 U.S.C. § 7104(a) (2014) contemplates that pertinent evidence will be first reviewed at the AOJ so as to not deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence prior to certification to the Board that is relevant to a claim or claims properly before it that is not duplicative of evidence already discussed in the Statement of the Case or Supplemental Statement of the Case, it must prepare a Supplemental Statement of the Case reviewing that evidence. 38 C.F.R. § 19.31(b)(1) (2017). Accordingly, this matter must be remanded for the AOJ to consider the additional evidence received following the issuance of the March 2015 Statement of the Case. Furthermore, a remand is necessary in order to obtain outstanding VA treatment records. The March 2015 Statement of the Case noted that VA treatment records from November 3, 2014, to January 13, 2015 had been reviewed. However, the only VA treatment records associated with the claims file are dated in January 2015. As the Veteran's VA treatment records, if procured, could bear on the outcome of his claims on appeal, efforts must be made to obtain any outstanding VA treatment records. See 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Additionally, the Veteran should be given the opportunity to provide any additional evidence in support of his claim. The record shows that his most recent examination to assess the nature and severity of his hearing loss was in November 2014. At that time, the Veteran's auditory thresholds and speech recognition scores using the Maryland CNC list were recorded. Additionally, the only functional effect noted was an inability to hear well. However, a January 2015 VA treatment record noted his complaint of hearing loss, as well as an associated spinning sensation and mild unbalanced gait. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only is this last examination remote, but the Veteran has also asserted that his condition has worsened since the previous VA examination. Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for a compensable rating for his bilateral hearing loss. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of 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 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). In addition to auditory thresholds and speech recognition scores, the examiner should fully describe the functional effects caused by the Veteran's hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, the case is REMANDED for the following action: (Please note, 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 and associate with the Veteran's electronic claims file all outstanding VA treatment records. 2. After completing the above development, schedule the Veteran for a VA audiology examination to determine the severity of his disability. Following a review of the record, to include the Veteran's statements, the examiner should describe the functional effects caused by the Veteran's hearing loss, including associated spinning sensation and mild unbalanced gait, as well as the impact on his activities of daily living. 3. Readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 or by the United States Court of Appeals for (CONTINUED ON NEXT PAGE) Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).