Citation Nr: 1312247	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  09-50 129	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his son


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The appellant served on active duty from December 1942 to October 1945.

This initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In May and September 2012, the Board remanded the matter for additional evidentiary development.  For the reasons set forth below, another remand of this matter is required.  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.

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).


REMAND

VA's assignment of disability ratings for hearing loss are based on a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85 (2012). 

As explained by the Board in its September 2012 remand, the record on appeal in appellant's case contained significant discrepancies in his audiological test results.  For example, July 2010 VA audiological testing showed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
90
105+
105+
105+
105+
LEFT
40
40
45
55
55

Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 96 percent, in the left ear.  The appellant was completely unable to hear in the right ear.

Private audiological testing performed in April 2012 showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
105+
LEFT
60
60
70
70
75

Speech audiometry revealed speech recognition ability of 72 percent in the left ear.  The appellant was unable to hear in the right ear.  It was not indicated whether or not the speech recognition testing was performed using the Maryland CNC Word List.  

Subsequently, June 2012 VA audiological testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
95
100
105+
105+
105+
LEFT
50
50
50
60
60

Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 88 percent in the left ear, and testing could not be performed in the right ear.

Given the apparent sharp decline in left ear hearing acuity noted on the April 2012 private audiogram, the Board concluded that another audiology examination was required in order to obtain a medical opinion reconciling the disparate audiometric findings of record.  In addition, the Board directed the RO/AMC to obtain clarification from the appellant's private audiologist regarding the testing method used during the April 2012 examination referenced above.  

Pursuant to the Board's remand instructions, the appellant underwent VA audiological examination in February 2013.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
95
10+
105+
105+
105+
LEFT
45
50
45
60
60

Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 84 percent in the left ear, and testing could not be performed in the right ear.

The examiner, however, failed to comment on the functional effects caused by the hearing loss, as specifically requested by the Board.  See also Martinak v. Nicholson, 21 Vet. App. 447 (2007) (holding that an audiologist must provide a description of the functional effects caused by a hearing loss disability).  Moreover, she also failed to address the other audiometric findings of record as specifically requested by the Board, to include addressing the apparent discrepancies in the appellant's left ear hearing acuity as measured on the April 2012 private audiometric examination as compared to the subsequent June 2012 VA audiometric examination.  This deficiency has not escaped the attention of the appellant's representative, who has requested a remand of this matter so that the RO/AMC may comply with the Board's previous remand directives.  See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance).

The Board also notes that the RO/AMC failed to seek clarification from the appellant's private audiologist regarding the testing methods used during the April 2012 examination referenced above.  The U.S. Court of Appeals for Veterans Claims (Court) has held that VA is required to seek clarification of a private examination report in "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."  Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) (holding that the Board erred in failing to seek clarification as to whether a private audiologist used the Maryland CNC word list in performing speech recognition testing).  

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.  The RO/AMC should contact the Ear, Nose, and Throat Associates of South Florida to inquire as to what type of speech discrimination test was performed on April 19, 2012, to specifically include whether the Maryland CNC word list was used in performing that test.  If a medical release is required to obtain that information, the RO/AMC should obtain the appropriate release from the appellant or request that he obtain the information himself.  All attempts to obtain this information should be documented in the claims folder.

2.  After the above is complete, the appellant's claims folder and relevant records from Virtual VA should be returned to the audiologist who performed the February 2013 VA audiology, if available.  If not, the claims folder and relevant records from Virtual VA should be made available to another VA audiologist or other appropriate medical professional for the purpose of obtaining an opinion as to the effects of the appellant's hearing loss on his functional abilities, including his ability to work and engage in ordinary activities.  

The audiologist must also specifically address the other audiometric findings of record, especially the April 2012 private examination and June 2012 VA examination results, and explain why the private examination revealed a significantly more severe finding in the left ear then the June 2012 and February 2013 VA examinations.

If the audiologist feels unable to provide the requested opinions without examining the appellant, such an examination should be arranged.  

3.  Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full.  The RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the RO/AMC must implement corrective procedures.

4.  Following any other indicated development, the RO/AMC should readjudicate the claim.  If the benefit is not granted, the appellant and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).


_________________________________________________
MICHAEL D. LYON 
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).