Citation Nr: 1305285 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 12-00 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating greater than 10 percent for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran, sitting at the RO in Waco, Texas, had a video hearing before the Board in January 2013 and the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran claims his hearing loss is worse than currently rated. Specifically, he complains of problems understanding speech, especially female voices. He indicates his first VA examination was conducted using female voices, but subsequent examinations used male voices. He does not feel the examinations adequately reflected his disability. The claims folder only contains one Compensation and Pension (C&P) VA examination dated in August 2011. VA outpatient treatment records from 2006 to 2011 also include hearing aid evaluations, but without any specific audiological findings or audiograms noted. The only other pertinent record is a private audiological report with audiogram dated August 2012. The Veteran claims he had several VA examinations. The September 2011 rating decision notes a VA examination conducted by a male examiner in Houston, Texas on August 15, 2011. The October 2011 Statement of the Case (SOC), on the other hand, references a VA examination conducted on August 15, 2011 in Shreveport. The August 2011 VA examination in the claims folder is indeed from Shreveport and was conducted by a female examiner. Further adding confusion, the August 2012 private audiology report indicates she reviewed two prior audiological results from the VA conducted in 2000 and 2010. It is unclear whether all relevant VA medical records and past VA examinations are in the claims folder. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The VA must make efforts to ensure the file is complete. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination in August 2011, nearly two years ago. At that time, the Veteran noted difficulty understanding speech, especially women's voices. Despite the complaint, speech recognition scores were 90% for the right ear and 94% for the left ear. As indicated above, the Veteran sought a private audiological examination in August 2012. In that report, speech recognition scores were slightly lower. The examiner noted right ear moderate hearing loss with speech discrimination between 75% to 87% and left ear severe hearing loss with "excellent" speech discrimination scores between 88% to 100%. On the actual audiogram, speech discrimination was measured at 84% for the right ear and 96% for the left ear. This report clearly indicates, however, the NU-6 phonetically-balanced word list was used in determining speech discrimination scores. The RO declined considering the private audiological results finding the results not "adequate for rating purposes." That is, 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 without the use of hearing aids. 38 C.F.R. § 4.85(a) (2012). Speech recognition ability must be measured using the Maryland CNC word list. See id. (emphasis added). The word list requirement in the regulation is very specific and differs from other word lists used to test impairment, such as the NU-6 phonetically-balanced word list. It is clear the VA examiner in August 2011 used the Maryland CNC word list in presenting the Veteran's hearing loss findings. It is also clear that the August 2012 private audiologist did not use the Maryland CNC word list. When a private examination report 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 ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed." Savage v. Shinseki, 24 Vet. App. 259 (2011). The holding was limited "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." Id. Here, the Board does not find Savage clarification is necessary since it is clear that the private audiologist did not use the Maryland CNC word list. There is no missing information that the private examiner could clarify. The Board takes this opportunity, however, to inform the Veteran that the August 2012 private audiological report cannot be used to support an increased rating for VA purposes. See 38 C.F.R. § 4.85. Regardless of the speech recognition test used, the private audiological report raises a reasonable possibility that the Veteran's hearing loss may have worsened since the last VA examination. In light of the possible worsening, the Veteran's concerns regarding the adequacy of the examination, and the possible missing treatment records, a new VA examination is indicated. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran that the August 2012 private audiogram by Dr. M. is inadequate for rating purposes under 38 C.F.R. § 4.85(a) because she did not use the Maryland CNC word list, but the Veteran may seek out a new private test if desired. 2. Ask the Veteran to identify any and all treatment he received privately and at the VA for his hearing loss not currently of record and to provide release forms for private treatment identified. If release forms are provided, obtain any and all private treatment records identified. Regardless of the Veteran's response, obtain VA outpatient treatment records and any VA audiological examinations conducted from 2000 to the present. All efforts to obtain records must be fully documented and VA facilities must provide a negative response if no records are found. 3. After the above development is completed and records are obtained to the extent available, schedule the Veteran for a new VA audiological examination to ascertain the current severity of his bilateral sensorineural hearing loss. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner is to address whether speech discrimination scores and audiological results adequately address the Veteran's complaints of increased difficulties understanding female voices and other high frequency noise. The examiner must provide a complete rationale for any opinion expressed. The examiner is to reconcile any opinion expressed with the other medical evidence. If an opinion cannot be made without resort to speculation, the examiner is to provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, readjudicate the Veteran's claim remaining on appeal. If the claim remains denied, provide the Veteran a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response 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). The 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 2002). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).