Citation Nr: 1100764 Decision Date: 01/06/11 Archive Date: 01/14/11 DOCKET NO. 08-29 656 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to a compensable rating for right ear hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2010 the Veteran testified at a travel board hearing at the Nashville RO before the undersigned acting Veterans Law Judge. The undersigned was designated by the Chairman of the Board to conduct that hearing and to render a final determination in this case. 38 U.S.C.A. §§ 7101(c), 7102 (West 2002). A transcript of the hearing has been reviewed and associated with the claims file. This claim was previously before the Board in May 2010 and was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board has determined that further development of the Veteran's claim is warranted. An April 2007 VA audiology note shows that the Veteran's hearing was examined. The treatment record indicates that an audiogram may be viewed under the tools tab. The audiogram was not provided in the text of the treatment record and does not appear to have been associated with the claims file. The Board cannot fully and fairly evaluate the Veteran's claim for entitlement to a compensable rating for right ear hearing loss without a copy of this audiogram. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, on remand, the RO must obtain a copy of the April 2007 audiogram from the Nashville VA medical center, following the procedures prescribed in 38 C.F.R. § 3.159 as regards requesting records from Federal facilities. In addition, the medical evidence of record includes two private audiological examinations (dated in September 2008 and January 2010) that have results in graphic form that have not been converted to an appropriate numerical form. Accordingly, this evidence, and any other such evaluations that may be associated with the record on remand, requires translation by a certified specialist. See Kelly v. Brown, 7 Vet. App. 471 (1995). Finally, the RO should seek clarification from the September 2008 and January 2010 private medical examiners as to whether the Veteran's audiological testing was conducted by a state-licensed audiologist and whether the testing included a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Recently, in Savage v. Shinseki, No. 09-4406 (U.S. Vet. App. Nov. 3, 2010) the Court held that when a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some otherway, the Board must either seek clarification from the private examiner or clearly and adequately explain why such clarification is unreasonable. See 38 U.S.C. §§ 5103A(a), 7104(d)(1); Tyrues, 23 Vet.App. at 184; 38 C.F.R. §§ 4.2, 19.9(a). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of the outstanding April 26, 2007, audiogram from the VA Outpatient Clinic, Chattanooga, Tennessee (which was signed by D.C.D., Audiologist), and inquire as to whether the April 2007 VA audiological examination was conducted by a state-licensed audiologist, and as to whether the speech discrimination scores contained therein were performed using the Maryland CNC test. With respect to the April 26, 2007, VA audiogram the RO/AMC should ask for a translation of the graphical displays of the audiogram test results that have not been converted to an appropriate numerical form, to include a specific breakdown of the puretone threshold average for each ear, at the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz). All records and/or responses received should be associated with the claims file. 2. With respect to the January 2010 private audiological reports, which are in graphical format, and bear the provider's initials of K.M.G., the RO/AMC should ask the Veteran to identify, by name and address (i.e., state, city and zip code), the private health care provider who conducted the January 2010 audiological examination. All requests and responses received should be associated with the claims file. 3. After obtaining any necessary authorization, the RO/AMC should contact the September 2008 and January 2010 private health care providers who conducted the audiological examinations (which are in graphical format), and inquire as to whether the examinations were conducted by state- licensed audiologists, and whether the speech discrimination tests were performed using the Maryland CNC test. With respect to each of the above-noted private health care providers, the RO/AMC should ask that they translate the graphical displays of the audiogram test results contained in their respective private audiological examinations (in September 2008 and January 2010) that have not been converted to an appropriate numerical form; specifically, each of the private providers should be asked to provide a specific breakdown of the puretone threshold average for each ear, at the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz). All records and/or responses received should be associated with the claims file. 4. The RO/AMC should advise the Veteran that he may submit a statement from each of the private health care providers who conducted the September 2008 (i.e., Better Hearing Center) and who conducted the January 2010 (i.e., bearing the initials K.M.G.) addressing: (i) as to whether the respective examination was conducted by a state-licensed audiologist; (ii) as to whether the speech discrimination tests were performed using the Maryland CNC test; and (iii) the translation of the graphical displays of the audiogram test results contained in the private audiological examinations; specifically, each of the private providers should provide a specific breakdown of the puretone threshold average for each ear, at the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz). All records and/or responses received should be associated with claims file. 5. After completion of the foregoing and after undertaking any further notice or development deemed warranted by the record, the RO must readjudicate the Veteran's claim on the merits. The RO's adjudication of the rating assigned for the Veteran's right ear hearing disability should include consideration of whether staged ratings, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007) are appropriate. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for a response. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).