Citation Nr: 1808998 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-45 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss on a schedular basis. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a November 2008 rating decision, the RO continued a noncompensable evaluation for bilateral hearing loss. The Veteran perfected an appeal for this rating decision. In December 2014 decision, the Board continued the denial of service connection for a compensable rating for bilateral hearing loss. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court remanded the claims for erectile dysfunction and hearing loss back to the Board in September 2015 for further action. The Board adjudicated the issue of a compensable evaluation for bilateral hearing loss but only on an extraschedular basis in a March 2017 decision. The Veteran appealed the issue of bilateral hearing loss to the Court. In a September 2017, JMPR, the parties agreed that the issue of an increased schedular rating for bilateral hearing loss needed to be remanded for further development. The Veteran agreed to abandon the part of his appeal of the Board's decision that denied him an initial compensable rating for bilateral hearing loss on an extraschedular basis. The parties agreed that the Board erred by failing to consider the Veteran's claim of entitlement to an increased rating for bilateral hearing loss on a schedular basis. The Board previously erred by limiting its review on remand to the extraschedular compensation for hearing loss even though the Veteran had not expressly abandoned his claim for a compensable schedular rating nor did the parties' JMPR otherwise limit the scope of the Board review of the Veteran's claim for an initial compensable rating. See September 2015 JMPR. The September 2017 JMPR also noted that the Board did not provide adequate reasons and bases for discounting favorable evidence that the Veteran's hearing had worsened since his February 2013 VA examination. See November 2015 VA audiology consult. The Court ordered that the motion for partial remand be granted and that the matter identified in the JMPR be remanded to the Board. Therefore, the issue of entitlement to a compensable evaluation for bilateral hearing loss on a schedular basis is now before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As explained above, the September 2017 JMPR noted that the Board did not provide adequate reasons and bases for discounting favorable evidence that the Veteran's hearing had worsened since his February 2013 VA examination. After reviewing the November 2015 audiology consultation, the Board agrees that a remand is needed. The November 2015 consult noted mild to severe sensorineural hearing loss to be present, bilaterally. Speech discrimination scores were 68 percent and 84 percent for the right and left ear, respectively. Puretone thresholds in decibels were not included in this record. This evidence shows a worsening of the Veteran's bilateral hearing since the most recent VA audiological examination conducted in February 2013. The February 2013 VA examination noted speech discrimination score for the right and left ear to be 88 percent and 92 percent respectfully. The February 2013 examiner described the Veteran's hearing as mild to moderately severe sensorineural hearing loss bilaterally. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the evidence of worsening of hearing since the last examination, a new examination is needed to determine the current severity of his disability. As an aside, the JMPR noted favorable evidence in a November 2014 VA audiological consultation. There are no November 2014 audiological consultations included in the record for this Veteran. The Board believes that the parties were instead referring to the November 2015 VA audiological consultation which includes favorable evidence but the parties mistakenly described it as a November 2014 consult. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the current severity of the bilateral hearing loss. The claims file must be made available to the examiner and the examiner's report should indicate that it was reviewed. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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). _________________________________________________ G. A. WASIK 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).