Citation Nr: 1114279 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 09-37 083A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO issued a rating reduction decreasing the Veteran's rating from 40 percent disabling to 20 percent disabling, effective October 1, 2007. In a July 2009 Board decision, the rating reduction was affirmed, however the Board determined that the Veteran's claim should be divided into two claims and that the rating reduction issue should be separate from the increased rating issue. As such, the Board remanded the claim for entitlement for an increased rating for bilateral hearing loss for issuance of a statement of the case (SOC) on the issue. This having been accomplished, the issue is now ready for appellate review. In December 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. Finally, it appears the issue of entitlement to service connection for a disease of the ear has been raised by the record. In this regard, the Board notes that the Veteran stated at his December 2010 hearing that he frequently experiences varying degrees of hearing loss that are the result of problems with his ears such as fluid build-up and sharp stabbing pain that includes ringing in his ears. As this issue has not been adjudicated by the Agency of Original Jurisdiction, the Board does not have jurisdiction over it. Therefore, it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After review of the record, while further delay is regrettable, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to an increased rating for bilateral hearing loss currently rated as 20 percent disabling is necessary. In this regard, the Board notes that the record contains multiple private audiological examination reports. On a private audiological evaluation dated December 2006, puretone thresholds, in decibels, as interpreted, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 80 90 80 75 LEFT 65 70 70 75 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Another private audiological evaluation dated July 2008, revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 75 75 N/A 60 LEFT 60 70 75 N/A 70 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. A November 2008 private audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 85 N/A 85 LEFT 75 75 75 N/A 75 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 60 percent in the left ear. Finally, a December 2010 private audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 65 70 65 LEFT 60 65 75 85 80 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 80 percent in the left ear. As noted above each private examination included speech recognition scores, however there is no indication in any of the examination reports as to the specific speech discrimination testing method used. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2010). As the type of speech discrimination test used is not specified in any of the above mentioned examination reports, the Board finds that the above stated issue should be remanded in order to obtain verification from the private examiners which testing method was used. Further, as two of the examinations do not contain findings at 3000 Hertz, those examiners should be asked whether testing was conducted at 3000 Hertz, and if so, the results of such, or whether testing simply not done at that frequency. See 38 C.F.R. § 4.85(b), (d) (2010) (generally, disability ratings are based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz (divided by four)). Accordingly, the case is REMANDED for the following action: 1. Request information from private audiologists at Hillcrest Hearing Aids and Balance Center; Avada Audiology and Hearing Care; and Ear, Nose, and Throat of Springfield, Inc.; regarding whether the controlled speech discrimination test (Maryland CNC) was used to determine the Veteran's speech recognition scores in the December 2006, July 2008, November 2008, and December 2010 private audiological examinations. Avada Audiology and Hearing Care (November 2008 examination), and Ear, Nose, and Throat of Springfield, Inc. (July 2008 examination) should also be asked whether testing was conducted at 3000 Hertz on the examinations specified herein, and if so, the results of such, or whether testing simply not done at that frequency. 2. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ S. L. Kennedy 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).