Citation Nr: 18152593 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-18 466 DATE: November 23, 2018 REMANDED The claim of entitlement to a disability rating greater than 50 percent for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1959 to July 1962. This appeal to the Board of Veterans Appeals (Board) arose from a July 2014 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, inter alia, denied entitlement to a disability rating greater than 50 percent for service-connected bilateral hearing loss. The Veteran disagreed with the RO’s decision and this appeal ensued. In June 2018, the Veteran withdrew a request to appear for a Board videoconference hearing. See 38 C.F.R. § 20.704(e). While the Veteran also initially appealed issues of entitlement to a higher disability rating for tinnitus, and entitlement to service connection for a left shoulder condition and a temporomandibular joint condition, he specifically excluded those issues from his April 2016 substantive appeal on VA form 9. Thus, those issues are not on appeal before the Board. The Board additionally notes that the Veteran also appealed issues of entitlement to a higher disability rating for vertigo with cerebellar gait, and of entitlement to earlier effective dates for the grant of service connection for vertigo with cerebellar gait, for the award of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, and for the award of Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35. Those issues, however, appear to still be under review by the AOJ, and the AOJ has not yet certified them on appeal to the Board. Thus, the issues are not yet ripe for the Board’s review, but may well be the subject of a future Board decision. The Board’s review of the claims file reveals that additional agency of original jurisdiction (AOJ) action, prior to appellate consideration of the matter on appeal, is warranted. The record reflects that the Veteran was seen for a VA audiological consultation in July 2013. The report notes that pure tone audiometric testing was conducted at that time; however, the audiogram reflecting the testing results is not of record. Where the audiometric testing data from the audiogram is relevant to the claim for a higher disability rating for bilateral hearing loss, remand is required for VA to associate a copy of the audiogram with the claims file. See 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the severity of the Veteran’s hearing loss was last evaluated during VA audiological examination in September 2016. Where the evidence of record has indicated that the Veteran’s hearing loss has increased in severity over the years, and where a January 2017 VA audiological consultation report noted his contentions of having additional difficulty conversing with his wife, the Board finds that the Veteran should be afforded a new VA audiological examination on remand to assess the current severity of his bilateral hearing loss. Although the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted, a new examination is appropriate when there is an assertion or indication of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The Veteran is hereby advised that failure to report to a scheduled examination, without good cause, may result in denial of the claim for increase. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through June 2017. Accordingly, in addition to obtaining the audiogram from the July 2013 VA audiological consultation (referenced above), the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since June 2017. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Adjudication of the increased rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. This matter is hereby REMANDED for the following action: 1. Obtain a copy of the audiogram from the Veteran’s July 2013 VA audiology consultation. Also, obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since June 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA audiology examination by an audiologist or appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All appropriate tests and studies—in particular, audiometry and speech discrimination testing—should be accomplished, with all results made available to the examiner prior to the completion of his or her report. For hearing loss, the examiner should provide numeric interpretation of any hearing tests/audiograms conducted. The examiner should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz and then provide the average pure tone threshold for these four frequencies. The reported numeric values and speech recognition scores (Maryland CNC test) must be in conformity with the requirements of 38 C.F.R. § 4.85. The examiner should also fully describe the functional effects of the Veteran’s service-connected hearing loss on his activities of daily living, to include employment. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the increased rating claim on appeal. If the Veteran fails, without good cause, to report to the requested examination, in adjudicating the claim for increase, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel