Citation Nr: 1311092 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-42 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating, meaning a rating higher than 0 percent, for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1953 to March 1955. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The decision confirmed and continued the 0 percent (i.e., noncompensable) rating for the Veteran's bilateral hearing loss, which has been in effect since March 20, 1955, so since the day after his military service ended. He failed to appear for a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing) that was scheduled for May 2012. But the Board remanded this claim in June 2012 to reschedule his hearing, either another Travel Board or alternative videoconference, because he had provided good-cause explanation for failing to appear for his previously scheduled hearing. His hearing was rescheduled for February 2013, but he again failed to appear for his hearing, and this time he did not provide any good-cause explanation or again request to reschedule the hearing. Accordingly, the Board deems that his hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2012). Since, nevertheless, his claim requires further development before being decided on appeal, the Board is again remanding his claim to the RO via the Appeals Management Center (AMC) in Washington, DC, albeit this time for other unrelated reasons. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Following certification of this appeal to the Board, the Veteran provided the Board with evidence of more recent, private, audiology examinations, but without waiving his right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ). Ordinarily, the Board would remedy this by soliciting this required waiver from him or his representative in this situation. Indeed, though inapplicable here, there even has been a change of this policy for substantive appeals filed on or after February 2, 2013, as the Board no longer needs to obtain this waiver because § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165, amended 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative request in writing that the AOJ initially review such evidence. This notwithstanding, other reasons dictate the remanding of this appeal inasmuch as the Veteran needs to be reexamined, regardless, to reassess the severity of his bilateral hearing loss. The results of private hearing evaluations in November 2009 at Gilliom Audiology and in December 2010 at Orange Park Medical Center are inadequate for rating purposes because it is unclear whether the Maryland CNC controlled speech discrimination test was used, as expressly required by VA regulation. See 38 C.F.R. § 4.85(a) (2012). Moreover, it is unclear whether these most recent audiology results indicate a compensable worsening of his bilateral hearing loss, as the reports are presented mostly in a graphical format, and although, as fact finder, it is permissible for the Board to interpret these graphical representations, though not the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC), the Board simply is unable to in this particular instance to allow the Board to sufficiently correlate this data with the applicable rating criteria. In Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court, itself, could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance. Kelly at 474. The Court explained that the Board, however, is empowered to make factual findings in the first instance and, if necessary, to remand uninterpreted audiograms for interpretation. The Veteran last had a VA compensation examination assessing the severity of his bilateral hearing loss in February 2008, so more than 5 years ago. He contends that his hearing loss has worsened since that examination, as evidenced by the results of the more recent hearing evaluations in November 2009 at Gilliom Audiology and in December 2010 at Orange Park Medical Center, albeit, as mentioned, needing to be interpreted for proper correlation with the applicable rating criteria. See Written Brief Presentation dated May 24, 2012. The mere passage of time, alone, is insufficient to require a new VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). But the Court has held that where a Veteran claims that a disability is worse than when last rated or examined, and the available evidence is too old to adequately determine the current state of the disability, VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991); and VAOPGCPREC 11-95 (April 7, 1995). Accordingly, on remand, the Veteran shall be scheduled for an updated VA examination - which employs the Maryland CNC test and interprets the private audiograms - to assess the current severity of his hearing loss disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This additional hearing examination also must include discussion of the functional effects of this disability in terms of the Veteran's occupational functioning and daily activities, that is, aside from setting forth the objective test results. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). See also Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); and 38 C.F.R. § 4.10 Prior to providing this examination, however, the AMC must obtain all outstanding private and VA audiological treatment or evaluation records. The Veteran as mentioned has submitted the reports of audiological evaluations by two private treatment providers, A.M. of Gilliom Audiology and A.Y. of Orange Park Medical Center, dated in November 2009 and December 2010, respectively. It thus is imperative that any additional or more recent evaluation or treatment records, including from these clinicians, be obtained and considered as well. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). Also, if there are any more recent and relevant VA outpatient evaluation or treatment records, they, too, should be obtained and associated with the claims file for consideration. See Dunn v. West, 11 Vet. App. 462, 466 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). See also 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(2), (c)(3), (e) (2012). Accordingly, the claim is REMANDED for the following additional development and consideration: (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. Contact the Veteran and request that he identify all additional medical evaluation or treatment he has received for his bilateral hearing loss since 2010, whether from VA or privately. Ask that he complete and return the necessary authorization (VA Form 21-4142) so VA may obtain all additional private medical evaluation or treatment records, including especially, but not limited to, from his private audiologists A.M. of Gilliom Audiology and A.Y. of Orange Park Medical Center. Obtain all identified records that are not already on file. The amount of efforts needed to be expended in trying to obtain additionally identified records depends on who has custody of them. If records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination to reassess the severity of the Veteran's bilateral hearing loss. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history of this disability. The examiner is asked to interpret the private audiograms dated in November 2009 and December 2010 in relation to the results of his evaluation of the Veteran's hearing acuity and the applicable rating criteria. The examination therefore must include all diagnostic testing or evaluation needed to address the relevant rating criteria, including determining the effect, if any, this disability has on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007); see also Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); see, too 38 C.F.R. § 4.10 (2012). 3. Ensure the VA examiner's report is responsive to the directives of this remand. If it is not, then take corrective action. 38 C.F.R. § 4.2 (2012). See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). 4. Then readjudicate this claim for a rating higher than 0 percent for the bilateral hearing loss in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, provide him and his representative another supplemental statement of the case (SSOC) and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen 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).