Citation Nr: 1749062	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-03 201A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased disability rating in excess of 20 percent for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Bosely, Counsel

INTRODUCTION

The Veteran had active service from October 1972 to May 1977. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in October 2016. 

In January 2017, the Board restored a 20 percent rating for bilateral hearing loss effective June 1, 2009.  At that time, the Board also remanded the increased rating claim to the RO for additional development.  

In the remand, the Board referred an issue to the RO involving service connection for frequent ear infections, as discussed by the Veteran at the Board hearing.  See Board Hr'g Tr. 9.  The Board does not have jurisdiction over the issue, and it must be again referred to the RO for appropriate action.  See 38 C.F.R. § 3.155(b)(3) (as in effect since March 24, 2015). 

The appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.


REMAND

This matter must be remanded because there was not substantial compliance with the Board's January 2017 remand directives.

In relevant part, the Board remanded the matter to obtain a new VA examination.  The Board found that an examination was needed to evaluate the severity of the Veteran's current hearing impairment.  The Board also found that a VA examination was needed to address the reliability of audiometric testing throughout the appeal period.  The Board noted that a March 2009 VA Audiology consultation, an October 2012 consultation, and a January 2016 VA examination specifically stated that the audiometric data was not reliable.  However, no explanation was given as to whether any other results might be inflated or invalid and, if so, how and to what extent.  The Board asked the VA examiner, upon remand, to address the reliability of the past (and current, if applicable) audiometric testing.  The Board requested that the examiner clarify, to the extent possible, which prior test results were unreliable, how they were unreliable, and, if possible, which tests may be considered reliable. 

Upon remand, a VA examination was conducted in April 2017.  It addressed the reliability of the audiometric data obtained at that examination.  However, it did not address the reliability of the prior audiometric data, as requested by the Board.  Therefore, there was not substantial compliance with the Board's remand directives, and a further remand is needed to obtain the missing information.  See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008).

Accordingly, the case is REMANDED for the following actions:

1.  After undertaking any preliminary development needed, arrange for the relevant information in the Veteran's claims folder to be returned to the examiner who conducted the April 2017 VA examination (or a suitable substitute if such examiner is unavailable), for the purpose of preparing an addendum opinion regarding the Veteran's bilateral hearing loss impairment.  (The need for an additional in-person examination should be determined by the examiner.)

The examiner is asked to address the reliability of the past (and current, if applicable) audiometric testing.  For instance, a March 2009 VA Audiology consultation, an October 2012 consultation, and a January 2016 VA examination indicate a history of inconsistent/unreliable test results.  Also, different examinations tend to show a level of hearing impairment much more severe than other testing.  Accordingly, the examiner is asked to clarify, to the extent possible, which prior test results were unreliable, how they were unreliable, and, if possible, which tests may be considered reliable. 

Please articulate the reasons underpinning every conclusion.  That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion.  

2.  After completing all actions set forth in paragraph 1, plus any further action needed as a consequence of the development completed in paragraph 1 above, readjudicate the remanded appeal.  If any benefit sought on appeal 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.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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.A. §§ 5109B, 7112.




_________________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board 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).
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