Citation Nr: 21071245 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-17 738 DATE: November 30, 2021 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to January 1974. This appeal to the Board of Veteran's Appeals (Board) arose from a July 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in November 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the file. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7102; 38 C.F.R. § 20.707. Here, the Board notified the Veteran of the unavailability of the VLJ who had presided over the November 2019 hearing and of the opportunity to testify before a current VLJ. The Veteran was also informed that, if he did not respond within 30 days of the date of the letter, the Board would assume he does not want a hearing and proceed accordingly. See September 2021 BVA Letter. As he did not respond within the applicable time period, the Board will proceed with the appeal. The claims originally on appeal were characterized as entitlement to service connection for hearing loss in the left ear and entitlement to an initial compensable rating for hearing loss in the right ear. In March 2020, the Board remanded these claims for further evidentiary development. In August 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for left ear hearing loss and assigned a noncompensable rating for the now service-connected bilateral hearing loss. Accordingly, the Veteran's left and right ear hearing loss claims have been recharacterized as is listed on the title page of this Remand. Also in March 2020, the Board remanded the claims for service connection for right and left knee disabilities. In October 2020, the AOJ granted those issues. As the Veteran did not file a notice of disagreement contesting either the effective date or the level of compensation assigned following these service connection grants, these issues are no longer part of this appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Further review of the claims folder indicates that the Veteran's last audiological examination was conducted in April 2017, and he contends that his hearing has worsened in severity since then. As that the most recent examination was conducted over four years ago, and in light of his assertions of a worsening of his now service-connected bilateral hearing loss, the Board finds that a new examination is necessary to evaluate fully and adequately the severity of this disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Allday v. Brown, 7 Vet. App. 517, 526 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. He should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Then, accord the Veteran a VA audiological examination to determine the current level of severity of his bilateral hearing loss disability. The claims file should be made available to the examiner for review. The examiner is asked to: a. Identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz and the resultant average; b. Administer the Maryland CNC Test to determine speech recognition ability; and c. Opine as to the functional effects caused by the Veteran's bilateral hearing loss disability. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for the scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.