Citation Nr: 1761184
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 16-20 534 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUES

Entitlement to an initial compensable disability rating for left ear hearing loss.

REPRESENTATION

Appellant represented by: Kentucky Department of Veterans Affairs

ATTORNEY FOR THE BOARD

G. Lilly, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1958 to March 1961.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted entitlement to service connection for left ear hearing loss and assigned a noncompensable (zero) rating for the left ear.

The Board remanded this matter in May 2017 for a new VA examination. The Veteran underwent a new VA examination in June 2017. In September 2017, the RO issued a supplemental statement of the case (SOC) and adjudicated the claim for an increased rating. Thus, there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board observes that the Veteran’s original Notice of Disagreement, received in July 2015, indicated that he sought a 10 percent disability rating for hearing loss in his left ear as well as his right ear, although he was not service connected for the right ear. The Board acknowledges that in the April 2016 substantive appeal (VA Form 9), the Veteran indicated that he only wished to appeal his rating for left ear hearing loss, thus, it appears that the Veteran did not perfect his appeal as to right ear.

Importantly, however, in April 2016, a duplicate Notice of Disagreement was received by VA, which is within a year of the June 2015 VA rating decision. However, it cannot be discerned if the RO has responded as to whether this is a notice of disagreement as to the denial of the Veteran’s claim of entitlement to service connection for a hearing loss of the right ear or a claim to reopen. Given that the RO has yet to respond, this issue is referred to the RO for further consideration.

As noted previously, the undersigned granted the motion to advance this appeal on the Board’s docket based on advanced age of the Veteran. 38 C.F.R. § 20.900(c) (2017) (defining “advanced age” as 75 or more years of age).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.

REMAND

Although further delay is regrettable, the Board finds a remand is necessary in this matter as this issue is inextricable intertwined with an issue that is possibly before the RO.

As noted in the Introduction, there is a possibility that the Veteran has a pending claim of entitlement to service connection for hearing loss of the right ear or a new and material evidence claim as to the right ear. Given that there is a possibility that a higher rating can be achieved if the Veteran were service connected for both ears, and where evidence has been submitted, the June 2017 Hearing Loss and Tinnitus, Disability Benefits Questionnaire, which may constitute new and material evidence as to the right ear hearing loss (the RO previously denied the claim as the Veteran’s hearing threshold did not meet VA’s standard although the RO acknowledged a positive nexus opinion of record), the Board finds that remand is warranted as a grant of service connection would have an impact on the issue on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been considered.).

Accordingly, the case is REMANDED for the following action:

1. Once the RO addresses the Veteran’s claim of entitlement to service connection for right ear hearing loss as noted in the Introduction, then readjudicate the remaining issue on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC), which addresses all relevant actions taken on the Veteran’s claims for benefits to include a summary of the evidence considered, since the issues of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board.

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).

_________________________________________________
YVETTE R. WHITE
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).

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