Citation Nr: 1808397 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-28 357A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a higher initial rating for bilateral hearing loss, currently evaluated as noncompensable prior to October 9, 2015, and 30 percent from October 9, 2015. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from November 1979 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In November 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's bilateral hearing loss to 30 percent, effective October 9, 2015. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a higher initial rating for bilateral hearing loss currently evaluated as noncompensable prior to October 9, 2015 and 30 percent from October 9, 2015. The Veteran was last provided a VA examination relating to his bilateral hearing loss in October 2015. At the November 2017 Board hearing, the Veteran testified that his hearing disability has increased in severity since his last VA examination. Additionally, the Veteran testified that between his October 2011 VA examination and October 2015 VA examination a significant increase in hearing loss occurred, which has continued to worsen since the October 2015 VA examination. See, November 2017 Board hearing transcript. In light of the Veteran's testimony, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Additionally, at the November 2017 Board hearing the Veteran testified that he receives treatment for his bilateral hearing loss at the VA Hospital in Pineville, Louisiana. The most recent VA treatment records in the Veteran's claims file are from August 2014 from the Shreveport, Louisiana VAMC. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record. 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 all outstanding treatment records relevant to the matters being remanded, to include from the VA Hospital in Pineville, Louisiana and Shreveport, Louisiana VAMC to include from August 2014. 2. After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The record and a copy of this remand must be made available to the examiner. The examination must include all testing deemed necessary by the examiner, to include audiological testing and speech recognition test using the Maryland CNC Test. The examiner should report all reported manifestations and daily functional impairment related to the Veteran's service-connected bilateral hearing loss. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether an increased rating for bilateral hearing loss may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL 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).