Citation Nr: 0001116 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-13 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from December 1952 to December 1959. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in November 1997 that denied the claimed benefits. REMAND Effective June 10, 1999, the rating criteria for hearing impairment were revised. When regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to a decision on his claim under the criteria that are most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The veteran's claim was filed in May 1997, prior to the revision, and the last decision rendered by the RO on the veteran's claim was in a Supplemental Statement of the Case in October 1998. It is clear that the RO did not and could not have considered entitlement to a higher rating under the regulations that existed after June 10, 1999, to include the revised § 4.86(a), which appears to apply in this case. Prior to appellate consideration of the case, the RO must again review the appealed issue, considering both the old and the revised rating criteria, and apply those criteria more advantageous to the veteran. Therefore, this case is REMANDED to the RO for the following additional actions: 1. The RO should contact the veteran and request that he submit the names and addresses of all health care providers, VA or private, who have evaluated or treated him for bilateral hearing loss since August 1997. After securing any necessary releases, the RO should request copies of any previously unobtained medical records for association with the claims folder. 2. The RO should then schedule the veteran for a VA audiological examination in order to ascertain the nature and severity of his defective hearing. All appropriate special studies should be accomplished. The claims folder should be made available to the examiner for review. 3. The RO should then consider the veteran's claim, in particular considering both the old rating criteria for hearing impairment and the revised rating criteria which became effective June 10, 1999, to include the revised § 4.86(a), and apply those criteria more advantageous to the veteran. In the event that action taken is not favorable to the veteran, he and his accredited representative should be furnished an appropriate supplemental statement of the case, and afforded a reasonable time to reply thereto. Thereafter, the case should be returned to the Board, if otherwise in order. The veteran need take no action until otherwise notified, but has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. Symanski Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).