Citation Nr: 1806605 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-34 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial compensable rating for right ear hearing loss prior to January 26, 2016, and in excess of 10 percent thereafter for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1965 to May 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In December 2015, the Board remanded the issue of entitlement to an initial compensable rating for right ear hearing loss for additional development. While on remand, in a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left ear hearing loss and assigned a 10 percent rating for bilateral hearing loss, effective January 26, 2016. Despite the award of a 10 percent rating, the Veteran has not been awarded the highest possible evaluation and he is presumed to be seeking the maximum possible evaluation. Thus, as the Veteran has not indicated satisfaction with the award of the 10 percent rating, the issue remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). Furthermore, it has been characterized as shown on the title page of this decision to reflect that a staged rating is in effect. Fenderson v. West, 12 Vet. App. 119 (1999). The Board observes that, following the AOJ's most recent adjudication of the Veteran's claim in the February 2016 supplemental statement of the case, additional evidence, to include VA treatment records dated through November 2017 as well as VA audiological examinations conducted in May 2017 and November 2017, was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board herein remands his claim. As such, the AOJ will have an opportunity to review all the newly received documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the appeal was remanded in December 2015 to obtain missing VA treatment records. Specifically, the Board found that audiograms were completed and electronically filed, but were not associated with the Veteran's claims file. See January 25, 2012 VA Audiology Consult ("Please see AUDIOGRAM DISPLAY for complete hearing thresholds levels."); April 10, 2013 VA Audiology Consult ("Please see AUDIOGRAM DISPLAY for complete hearing thresholds levels."); June 26, 2013 VA Audiology Medical Device Note ("Please see AUDIOGRAM DISPLAY dated 4-9-13 for complete hearing threshold levels."); July 17, 2013 VA Audiology Medical Device Note ("Please refer to the Hearing Aid Evaluation and Audiogram Display to review the test results."); August 22, 2014 VA Audiology Medical Device Note ("Please refer to the Hearing Aid Evaluation and Audiogram Display to review the test results."). The Board notes that additional VA treatment records were obtained; however, the AOJ did not obtain the complete aforementioned treatment records as such audiograms were not obtained. Furthermore, a November 2013 VA treatment obtained on remand also indicates that an audiogram was completed, but was not associated with the record. See November 19, 2013 VA Audiology Medical Device Note ("Please refer to the Hearing Aid Evaluation and Audiogram Display to review the test results.").Thus, the Board finds that a remand is necessary to obtain copies of the missing audiograms and associate them with the Veteran's claims file. In this regard, the AOJ is advised that such may be contained in VISTA Imaging rather than CAPRI. Finally, the Veteran's claim should be readjudicated on the entirety of the evidence, to include such received after the issuance of the February 2016 supplemental statement of the case, which encompasses VA treatment records dated through November 2017 as well as VA audiological examinations conducted in May 2017 and November 2017. Accordingly, the case is REMANDED for the following action: 1. Obtain the January 2012, April 2013, July 2013, November 2013, and August 2014 VA audiogram displays. In this regard, the AOJ is advised that such may be contained in VISTA Imaging rather than CAPRI. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include such received after the issuance of the February 2016 supplemental statement of the case, which encompasses VA treatment records dated through November 2017 as well as VA audiological examinations conducted in May 2017 and November 2017. If such claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).