Citation Nr: 0004234 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 96-06 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from May 1980 to May 1983. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1995 Rating Decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). REMAND Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the appellant's claim is well grounded because he has claimed that the disability is in fact worse than the rating assigned to it by the RO. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999). Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. The appellant was last examined in October 1995 for compensation purposes for service-connected bilateral hearing loss. The record reflects that the appellant failed to show for an August 1997 audiological examination, but in light of the length of time since his last audiologic examination, the Board finds that the appellant merits an additional and more up-to-date medical evaluation. The duty to assist includes the duty to develop the pertinent facts by conducting a current and thorough medical examination. See 38 C.F.R. § 3.159 (1999); see also Waddell v. Brown, 5 Vet. App. 454 (1993). On remand, the RO should have the appellant examined for compensation purposes to address the extent of his disability based on bilateral hearing loss. Additionally, the Board notes that there is no evidence in the file that the appellant himself canceled the examination scheduled for December 1999. Accordingly, further appellate consideration will be deferred, and the case is REMANDED to the RO for the following development: 1. The veteran should be requested to identify all sources of recent treatment received for his service-connected bilateral hearing loss, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. Next, the RO should schedule the appellant for a VA audiological examination. The appellant's claims folder and a copy of this remand must be furnished to the examiner for review prior to examination, and the examiner should be asked to indicate in the examination report whether he or she has reviewed the claims folder. All appropriate diagnostic testing deemed necessary should be undertaken. Specifically, the appellant should be given an audiometric examination of both ears, and be tested on the Maryland CNC test of speech discrimination. The report of examination, including the reports of all completed tests or special studies should thereafter be associated with the appellant's claims folder. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1999); See Also Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above, the RO should readjudicate the issue on appeal, with consideration given to all the evidence of record, including all additional medical evidence obtained by the RO pursuant to this remand. In adjudicating the claim the RO should take into consideration all applicable legal provisions and should consider carefully and with heightened mindfulness the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 5. The appellant is hereby informed that he may furnish additional evidence and/or argument while the case is in remand status. Quarles v Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. A. BRYANT 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).