Citation Nr: 1808698 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-03 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 20 percent from March 5, 2012, for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for bilateral hearing loss effective March 25, 2009, and assigned an evaluation of zero percent. In March 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; the transcript of the hearing is of record. In a May 2015 rating decision the RO granted the Veteran a higher rating of 20 percent for his bilateral hearing loss, effective March 5, 2012. In January 2017, the Board denied the issue of entitlement to an initial compensable rating prior to March 5, 2012, for service-connected bilateral hearing loss. The Veteran has not appealed the Board's January 2017 decision. As a higher rating for bilateral hearing loss is available and as a claimant is presumed to seek the maximum available benefit for a given disability, the claim for a higher rating, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2014, November 2015, January 2017, and August 2017 the Board remanded the issue on appeal for further development. As noted in the prior Board remands, the issue of entitlement to service connection for a heart disorder was raised during the March 2012 Board hearing, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is once again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In January 2017 and August 2017, the Board remanded the bilateral hearing loss issue for outstanding VA treatment records dated since February 2016, as well as the full audiological results from the July 17, 2015, VA audiological evaluation. Upon remand, recent VA treatment records were associated with the claims file. However, the full audiological results from the July 17, 2015, VA audiological evaluation were not associated with the claims file. As previously stated by the Board, in a July 2015 VA audiology report, the examiner noted that the Veteran's speech recognition scores using the Maryland CNC list were 88 percent in the right ear and 84 percent in the left ear. The examiner also indicated that the auditory thresholds remained within five to 10 decibels when compared to his last audiometric evaluation. However, the examiner indicated that the full audiological results could be found "in audiogram display under the tools menu in CPRS." The audiological results found in the audiogram display under the tools menu in CPRS have not been associated with the claims file as directed by the January 2017 and August 2017 Board remands. Thus, the AOJ has not substantially complied with the Board's remand directives, and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board notes that in March 2017, the Veteran submitted a fully executed VA 21-4142 Authorization for Release of Information and identified a private otolaryngologist, Dr. S. B., who had provided treatment for his bilateral hearing loss. The Veteran also identified his primary care physician, Dr. R. H. as having provided the referral to the otolaryngologist. The RO has made no attempt to obtain medical records from either of these private physicians. On remand, the RO must attempt to obtain these records. In a January 2018 Post-Remand Brief, the Veteran's representative requested that, if the Veteran's claim could not be granted based on the evidence of record, a new examination be scheduled to assess the current severity of the Veteran's bilateral hearing disability. The representative stated that the last VA examination was completed in July 2015 and was too old to adequately evaluate the disability. While the age of the examination does not, in itself, mandate a remand, the Board finds it appropriate to order a new examination given the difficulty obtaining the audiological results from the July 2015 evaluation. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic claims file: private treatment records relating to the Veteran's bilateral hearing disability from Dr. S. B. and Dr. R. H.; any outstanding VA treatment records dated from February 2017; and the full audiological results from the July 17, 2015, VA audiological evaluation. The Board notes that the July 17, 2015, full audiological results found "in audiogram display under the tools menu in CPRS" are not accessible to the Board and must be associated with the claims file in another manner. 2. If any of the records requested above 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 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. Then, schedule the Veteran for a VA audiology examination to determine the nature and severity of his bilateral hearing loss. The entire claims file and a copy of this remand should be available to and be reviewed by the examiner. Any tests or studies deemed necessary must be conducted, to include audiometric testing, and the results should be reported in detail. A complete rationale should be provided for any opinions offered. 3. Thereafter, and after any further development deemed necessary, readjudicate the issue of entitlement to a rating in excess of 20 percent from March 5, 2012, for the service-connected bilateral hearing loss. If the benefit sought on appeal is not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).