Citation Nr: 1107014 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 09-21 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to a compensable evaluation for residuals of a crush injury of the right lower calf with postoperative release gastrocnemius aponeurosis (right calf disability). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to February 1968 and from October 1969 to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In his May 2009 substantive appeal, the Veteran requested a hearing at a local VA office before a member or members of the Board. After being scheduled and notified of a hearing in December 2009, the Veteran informed the RO, in a December 2009 correspondence, of his request to cancel his scheduled hearing. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2010). The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's right calf disability results in no more than slight limitation of function, to include pain, spasms, and stiffness. 2. The Veteran's right ankle disability results in moderate, limited range of motion. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for the Veteran's right calf disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.73; Diagnostic Code 5311 (2010). 2. The criteria for a separate 10 percent, but no higher than 10 percent, disability rating for a right ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Service connection was established for a right calf disability in a February 1992 rating decision when a noncompensable evaluation was assigned. Currently, a noncompensable disability rating is in place for the Veteran's right calf disability. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran's injury to the right lower calf is rated under the criteria for evaluating muscle injuries contained in 38 C.F.R. § 4.73. The applicable Diagnostic Code is DC 5311, which applies to Muscle Group XI, including the posterior and lateral crural muscles, and muscles of the calf: (1) triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris. The function of Muscle Group XI involves propulsion, plantar flexion of foot (1); stabilization of arch (2, 3); flexion of toes (4, 5); and flexion of knee (6). Under this diagnostic code, a noncompensable disability rating is warranted if impairment of this muscle group is slight, a 10 percent disability rating is warranted if it is moderate, a 20 percent disability rating is warranted if it is moderately severe, and a 30 percent disability rating is warranted if it is severe. 38 C.F.R. § 4.73, Diagnostic Code 5311 (2010). A slight disability of the muscles anticipates a simple wound of muscle without debridement or infection. There should be a history of superficial wound with brief treatment and return to duty. Medical records should indicate healing with good functional results. 38 C.F.R. § 4.56(d)(1). There should be no cardinal signs or symptoms of muscle loss, loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). A moderate disability of the muscles is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Consistent with this level of disability is a record of in-service treatment of the wound. There should also be a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, i.e. loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. There should also be particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. At this level of disability, objective findings indicate exit scars, a short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle wound is a through and through or deep penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history consistent with this type of injury should include hospitalization for a prolonged period of treatment of the wound, with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, pain, impairment of coordination and uncertainty of movement, and, if present, evidence of inability to keep up with work requirements. Objective findings would include entrance and (if present) exit scars indicating a track of a missile through one or more muscle groups. Objective findings would also include indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment 38 C.F.R. § 4.56(d) (3). A severe muscle wound is a through and through or deep penetrating wound due to a high-velocity missile or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, and intermuscular binding and scarring. A history consistent with this type of injury should include hospitalization for a prolonged period of treatment of the wound, with a record of consistent complaint of cardinal symptoms worse than those shown for moderately severe muscle injuries, consisting of loss of power, weakness, lowered threshold of fatigue, pain, impairment of coordination and uncertainty of movement, and, if present, evidence of inability to keep up with work requirements. Objective findings would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements compared with sound side indicate severe impairment of function. If present, objective findings would also include X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to a long bone; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing muscle group; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle group. 38 C.F.R. § 4.56(d) (4). The record reflects that in August 1974, the Veteran's right calf was caught in a machine and a crush contusion type injury was sustained. While hospitalized for 18 days, it was confirmed that a hematoma in the calf area was present. The condition slowly resolved and left no vascular residual impairment. It was later shown that the injury produced gastroc shortening causing an ankle equinus deformity. Surgery in May 1976 was for release of right gastrocnemius aponeurosis. Approximately three decades later, in September 2007, the Veteran underwent a VA examination of his right leg. At that time, the Veteran reported that his lower leg muscular area had been doing well until about one year prior when he started to have spasms in the right calf area. He also reported that standing for one to two hours caused pain and spasms in the right calf muscle and walking from 30 to 45 minutes, at a slow pace, aggravated this problem. In addition, he reported daily stiffness in the morning, which lasted for about an hour. He was not on any medication for these problems. Upon physical examination, the examiner indicated that the Veteran's gait is without limping. Palpation of the right calf was with complaint of tenderness on palpation of the upper posterior calf area, which was accompanied by slight wincing, but the rest of the leg was without complaint of tenderness on palpation. Also, the examiner noted that the Veteran's right ankle was without edema or discoloration, and the right lower leg was also without edema or discoloration. Of significance, it was noted on the examination report, with emphasis, that the Veteran terminated all passive range of motion testing due to subjective pain. However, it was also indicated, with emphasis, that the Veteran ambulated with a normal gait, despite the complaints of subjective pain. Ultimately, the Veteran was assessed with "right calf crush injury with surgery release of the gastrocnemius aponeurosis with good results." Given the above, the Board finds that the Veteran's right calf disability more closely approximates slight functional impairment, warranting a noncompensable disability rating. Specifically, the Veteran's medical records, to include the September 2007 VA examination report, indicated healing of the right calf with good functional results. Also, while the September 2007 VA examination report indicated that the Veteran experienced pain for the past year, after standing or walking for a period of time, it does not rise to the level of moderate impairment. Indeed, a moderate impairment of the right calf would require a record of consistent complaint of fatigue-pain. In fact, there were no other cardinal signs or symptoms of muscle loss, loss of power, weakness, impairment of coordination, and uncertainty of movement indicated upon examination or in any other treatment report. In addition, objective findings of moderate impairment, to include indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, were not indicated on any of the medical evidence of record. The Board has thoroughly reviewed the Veteran's extensive VA outpatient treatment reports and finds no additional evidence that pertains to the applicable rating criteria for the Veteran's right calf disability. The Board has also looked at other diagnostic codes for rating the Veteran's right calf disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, the Veteran's September 2007 examination report revealed that the Veteran had a scar on his right lateral posterior calf area and limited motion of the right ankle. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for scars, other than the head, face, or neck, that are deep or cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.). A deep scar, according to Note 2, is one associated with underlying soft tissue damage. Under Note 1, scars in widely separated areas, as on 2 or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for scars that are superficial, do not cause limited motion, and cover area of 144 square inches (929 sq. cm). A superficial scar, as defined in Note 2, is one not associated with underlying soft tissue damage. Again, scars in widely separated areas, as on 2 or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. See Note 1 to 38 C.F.R. § 4.118, Diagnostic Code 7802. Under 38 C.F.R. § 4.118, Diagnostic Code 7803, a 10 percent rating is warranted for a scar that is superficial and unstable. An unstable scar is defined at Note 1 as one where, for any reason, there is frequent loss of covering over the scar. A superficial scar is defined in Note (2) as one not associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A superficial scar is again defined in Note (1) as one not associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, Diagnostic Code 7805, a scar may also be rated based upon limitation of function of the part affected. Limited motion of the ankle is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under those criteria, a 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating is assigned for marked limitation of motion. With respect to this particular rating criteria, the words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2010). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). Upon objective examination, the September 2007 examiner indicated that the Veteran had a scar on his right lateral posterior calf area that measured 21.6 centimeters long by 1.6 centimeters wide. It was not adhered to underlying structures and nontender to palpation. The examiner noted that he did not see any atrophy or loss of muscle tone in the Veteran's leg. As such, based on the applicable rating criteria discussed above, the Board does not find that a separate rating based on the Veteran's right calf scar is warranted as the scar only covers an area of 21.6 by 1.6 centimeters, was not unstable, and pain was not indicated upon examination. In short, there is no separate disability which arises as a result of the Veteran's scar. During the September 2007 VA examination, the Veteran displayed limitation of motion of his right ankle. Indeed, the Veteran had normal plantar flexion of the right ankle but his active range of dorsiflexion of 2 degrees and passive range of dorsiflexion was 8 degrees (20 degrees dorsiflexion is considered normal). This limitation of motion of the Veteran's right ankle represents moderate limitation of motion, warranting a separate 10 percent disability rating. There is no evidence of record to suggest that the Veteran has marked limitation of motion of his right ankle as the Veteran had normal plantar flexion and the Board finds that the post-service medical records provide highly probative evidence against a finding over and above moderate. In addition, the Board has also considered application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, supra with respect to the Veteran's right ankle disability. While the September 2007 examination report indicated that the Veteran's right ankle disability caused him pain, upon objective testing (repetitive motion) by the September 2007 examiner, there was no additional limitation of motion. Such findings do not provide for a higher disability rating in this case. Indeed, the DeLuca factors go to additional loss of function caused by limitation of motion due to pain. In the September 2007 examination report, the examiner indicated that upon repetitive motion, which tested for increased pain, weakness, fatigability, incoordination, and lack of range of motion, the Veteran exhibited no additional loss or range of motion. In short, there is no additional loss of function caused by limitation of motion due to pain. Therefore, application of 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not allow for a disability rating higher than 10 percent. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). At this juncture, the Board notes that the September 2007 examination report indicated that the Veteran's right calf musculature structures were operated on, and not his right ankle. Thus, it is at least unclear whether the limitation of motion of the Veteran's right ankle is a manifestation of his right calf disability. However, in resolving all doubt in favor of the Veteran, the Board finds that a separate rating is appropriate for the Veteran's right ankle disability, and a 10 percent disability rating is warranted. It is important for the Veteran to understand that without giving the Veteran all reasonable doubt, there would be no basis for the 10 percent finding. The Board has also considered whether referral for a rating outside of the schedule is warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) and determined referral for extraschedular consideration is not warranted in this case. Ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from a right calf disability. There are no manifestations of the Veteran's right calf disability that have not been contemplated by the rating schedule and an adequate evaluation was assigned based on evidence showing the symptomatology and/or disability. Indeed, the record is absent for any evidence of marked interference with employment or any periods of hospitalization due to his right calf disability. The Board notes that in the September 2007 VA examination, the Veteran stated that he only works part-time fixing small engines and has only been working since May of 2007, part-time. When working, the Veteran indicated that he has to pace himself, but he did not describe any other limitation of activities. In this case, there is no evidence of record to suggest that the Veteran has missed work due to his right calf disability or that he is unemployed due to his right calf disability. Indeed, at that time, the Veteran was employed part-time and stated, himself, in the September 2007 examination report, that he had not missed any work in the past year because of his calf problem. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. The post-service medical evaluation only supports this finding, indicating the minimal nature of the problem at this time. Duties to Assist and Notify The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2007, September 2007, and November 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Vazquez-Flores v. Peake, 22 Vet App. 137 (2008), the Court held that more specific notice was necessary for an increased rating claim, to include providing the applicable rating criteria. However, Vazquez-Flores was overruled, in part, eliminating the requirement that such notice must include information about the diagnostic code under which a disability is rated, and notice about the impact of the disability on daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In any event, while not required, the Veteran was provided with the specific language of the diagnostic criteria in post-adjudicatory documents. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER Entitlement to a compensable evaluation for a right calf disability is denied. Entitlement to a separate evaluation of 10 percent, but no higher than 10 percent, for a right ankle disability is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. REMAND At the outset, the Board acknowledges the RO's development in this case. Nonetheless, a review of the claims file indicates that additional action is needed. Although the Board sincerely regrets the further delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Recently, the Court has held that, pursuant to 38 U.S.C. § 5103A(a), when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Savage v. Shinseki, No. 09-4406 (U.S. Vet. App. Jan. 4, 2011). Acknowledging that VA has very little ability to compel non-VA medical personnel to comply with such a request, the Court limited its holding "to those instances in which the missing information is relevant, factual, and objective - that is, not a matter of opinion - and where the missing evidence bears greatly on the probative value of the private examination report." In Savage, the Court found that the Board erred in not seeking additional clarification of private audiograms, as there was a lengthy period of time during which the only available evidence consisted of the private audiograms, which could potentially have provided a staged rating; the reports rejected by the Board were detailed reports clearly based on objective testing and rendered by what appear to be competent and experienced specialists; and the burden on VA in obtaining this missing information is minimal. In the instant case, there are two opposing medical opinions of record opining as to the relationship between the Veteran's claimed hearing loss and his military service. One opinion is provided by a private health care provider and the other was provided by a VA examiner. Of importance, however, it is unclear whether the Veteran has a hearing loss "disability" as defined by VA regulation. Parenthetically, a hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2010). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. As noted above, a private health care provider indicated that the Veteran underwent audiological testing in December 2006. Those results are included in the record, however, the results are in graphical rather than numerical format. In light of the above holding by the Court, and because the results of the December 2006 audiogram reasonably appear to contain information necessary to properly decide the Veteran's claim but are unclear and not suitable for rating purposes, the Board finds that a remand is necessary to clarify the December 2006 private audiogram results. Accordingly, the case is REMANDED for the following action: 1. Send the December 2006 private audiogram results to the health care provider, "W.J.," who conducted the testing and ask her to interpret the graphical results of that report. Specifically, numerical results for auditory thresholds in the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz should be provided. In addition, W.J. should note whether speech recognition scores, if any, were obtained using the Maryland CNC Test. If the RO is unable to make contact with W.J., or W.J. refuses to comply with VA's request, the RO should document such results in the claims file. 2. Then, readjudicate the Veteran's claim for service connection for bilateral hearing loss, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this Remand. If the decision, with respect to the claim, remains adverse to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs