Citation Nr: 18142705 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-16 233 DATE: October 17, 2018 REMANDED The claim of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, prior to February 14, 2012, and in excess of 20 percent thereafter, is remanded. The claim of entitlement to an earlier effective date for the increased rating for bilateral hearing loss is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from January 1977 to January 1978. The Board of Veterans’ Appeals (Board) notes that the Veteran’s claim for entitlement to an increased rating for bilateral hearing loss was readjudicated by a March 2015 rating decision that increased the disability evaluation from 10 percent to 20 percent, with an effective date of February 14, 2012. As the increase did not constitute a full grant of the benefit sought, the Veteran’s claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Furthermore, in March 2016, the Veteran filed a notice of disagreement (NOD) with respect to the effective date assigned for the increase. According to the Veterans Appeals Control and Locator System (VACOLS), the local Regional Office (RO) has not acknowledged the Veteran’s March 2016 NOD with respect to the issue of entitlement to an earlier effective date for the increased rating. Where a NOD has been filed but a statement of the case (SOC) has not been issued, the Board must remand the claim to the Agency of Original Jurisdiction (AOJ) so that a SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this issue has been added to the appeal pursuant to Manlincon and is remanded for the issuance of a SOC. The Board further notes that in June 2017, the Veteran’s representative submitted a written request for the Board to wait the full 90-day period prior to issuing a decision in order to submit additional evidence. While a formal ruling granting the extension was not issued, there is no prejudice to the Veteran in proceeding with the appeal, as 90 days have already passed and the claims are remanded herein for additional development. If the Veteran has additional evidence he wishes to submit, he may do so at that time. As a final matter, the Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, recent medical treatment records of the Department of Veterans Affairs (VA) indicate that the Veteran is currently employed, and there is no evidence that employment is not substantially gainful. See March 2015 VA treatment record. As such, entitlement to a TDIU has not been raised. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to an increased disability rating for his service-connected bilateral hearing loss. As previously discussed, during the pendency of the appeal, the Veteran’s disability rating for his hearing loss was increased from 10 percent to 20 percent, effective as of February 14, 2012. The Veteran is also seeking entitlement to an earlier effective date assigned for the increase. Increased Rating Claim A review of the claims file reveals that there are outstanding records. In a November 2012 correspondence, the Veteran’s representative confirmed that the Veteran sought all medical treatment from VA. The Board notes that the last VA treatment notes of record are from March 2015. The March 2015 SOC notes that the last VA medical records available are from March 2015. Furthermore, the Board notes that there are no VA treatment records from July 2006 through January 2013. While it is possible that the Veteran may not have sought treatment during that timeframe, the Board finds that the RO should verify whether the Veteran received treatment from July 2006 through January 2013, as that constitutes a significant period of time. Accordingly, on remand, VA should obtain the Veteran’s outstanding treatment records from VA facilities and make appropriate efforts to obtain medical records from other sources the Veteran identifies. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, the Board notes that the Veteran’s last VA audiology examination of record is from February 2015. An updated examination should be obtained to assess the current severity of the Veteran’s service-connected bilateral hearing loss. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). Furthermore, the Board finds that a new examination is also warranted on the basis that the forthcoming medical evidence should be considered on examination. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder). Therefore, in light of the foregoing, the AOJ should make appropriate efforts to ensure that all outstanding VA treatment records and any pertinent private treatment records are associated with the claims file. Furthermore, a more contemporaneous examination is warranted in order to ensure that all medical evidence, including the outstanding VA treatment records, are reviewed on examination, and that the record reflects the current severity of the Veteran’s service-connected bilateral hearing loss. Earlier Effective Date In a March 2015 rating decision, the RO increased the Veteran’s disability rating for his bilateral hearing loss from 10 percent to 20 percent, effective as of February 14, 2012. In March 2016, the Veteran filed a NOD with respect to the effective date assigned for the increase. As it does not appear that the RO has taken any further action regarding this claim or acknowledged the Veteran’s NOD, this claim must be remanded for issuance of a SOC. See 38 C.F.R. §§ 19.9, 20.200, 20.201; Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The AOJ should issue a statement of the case (SOC) addressing the issue of entitlement to an earlier effective date assigned for the increased rating for his service-connected bilateral hearing loss. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The AOJ should advise the Veteran that the appeal will not be returned to the Board for appellate consideration following the issuance of the SOC unless he perfects his appeal. 3. After obtaining any outstanding records, schedule the Veteran for an audiology examination to determine the current severity of his service-connected bilateral hearing loss. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review. The examiner is to perform all indicated tests and studies, and provide pure tone threshold values and speech discrimination percentages using the Maryland CNC test. The examiner should also describe the Veteran’s reported effects of the Veteran’s hearing loss disability on his functioning. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 4. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel