Citation Nr: 1306544 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-45 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to December 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 The Veteran contends that his hearing loss is more severe than is encompassed by the currently assigned noncompensable rating. The Veteran was afforded VA examinations of his hearing in March 2010 and October 2012. In March 2010, the Veteran's average decibel losses at the frequencies tested were 65 in the left ear and 58 in the right ear. Speech discrimination, which was tested using the Maryland CNC word recognition test as required by 38 C.F.R. § 4.85(a), was 92 percent in the left ear and 100 percent in the right ear. In October 2012, the Veteran's average decibel losses at the frequencies tested were 68 in the left ear and 63 in the right ear. Speech discrimination was 80 percent in the left ear and 92 percent in the right ear The claims file also includes a private audiological examination report, dated in October 2012 from South Jersey ENT Associates. In this report, a private audiologist indicated that the Veteran has bilateral sensorineural hearing loss, with speech discrimination scores of 72 percent in the left ear and 80 percent in the right ear. It is not clear from the report whether the Maryland CNC word list was used in the examination. Also, the audiometric test results are only recorded in graphical form. The Court of Appeals for Veterans Claims (the Court) has determined that under 38 U.S.C.A. § 5103A(a) : [W]hen a private examination report reasonably appears to contain information necessary to properly decide a claim but it 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 the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). 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." Id. at 270. The facts in this case are very similar to those in Savage. The October 2012 private audiometric test report contains relevant test results that potentially could be used to evaluate the Veteran's hearing disability. However, this private examination contains insufficient or missing data. Specifically, it fails to indicate whether the Veteran's documented speech discrimination percentages were obtained using Maryland CNC testing. Because the record contains a private examination report that reasonably appears to contain information necessary to properly decide the Veteran's claim, but which is not suitable for rating purposes, and as the information reasonably contained in the report cannot otherwise be obtained, VA must seek clarification from the private examiner or the claimant regarding the October 2012 examination before making a final decision on the merits. The Board finds that a remand is necessary to clarify the October 2012 private audiometric report. Accordingly, the case is REMANDED for the following action: 1. The RO must contact South Jersey ENT Associates to determine whether the Veteran's October 2012 speech recognition scores were obtained using the Maryland CNC Test. Also, the private audiologist should be asked to assign numerical designations for the auditory thresholds at the tested frequencies. If the RO is unable to make contact with South Jersey ENT Associates or if no response is received from them within a reasonable amount of time, the RO should document such results in the claims file. 2. Thereafter, the RO should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC. 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. 2012). _________________________________________________ MARK W. GREENSTREET 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).