10-27 279
10-27 279
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served on active duty Feb 1958–Feb 1960 and appeals a rating for bilateral hearing loss seeking >60% disability.
- Appeal arises from a June 2009 RO decision; Board hearings and remands occurred (hearing in June 2013; remands in July 2013 and March 2014).
- VA ordered examinations; August 2013 exam completed, August 2015 exam was refused by Veteran (noted his belief he was already 100% disabled).
- The AOJ awarded TDIU effective Aug 21, 2006, resolving the separate TDIU issue and removing it from the Board’s consideration.
- The electronic record contains an October 2016 VA audiology evaluation whose audiogram/results were not associated with the file and were not considered by the AOJ.
- The Board remanded the claim for the AOJ to obtain the October 2016 audiogram and any VA treatment records through Dec 2016, and to readjudicate the claim based on the complete record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to rating in excess of 60% for bilateral hearing loss | Veteran asserts his current auditory condition warrants >60% rating based on recent testing and condition | AOJ effectively maintained that existing record did not support >60%; additional records (Oct 2016 audiogram) not considered | Remand: obtain Oct 2016 audiogram and recent VA treatment records and readjudicate; claim not finally decided |
| Whether to schedule additional VA exams after refusal | Veteran (via wife) refused Aug 2015 exam citing belief he was already 100% disabled | AOJ would have scheduled; but futility noted because Veteran declined further exam | Board found further exams futile and did not order them due to refusal |
Key Cases Cited
- Soyini v. Derwinski, 1 Vet. App. 540 (Vet. App. 1991) (standard on when further development is futile)
- Wood v. Derwinski, 1 Vet. App. 190 (Vet. App. 1991) (futility of further development when claimant declines participation)
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App. 1992) (VA records are constructively of record and must be obtained)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999) (claimant may submit additional evidence after remand)