Citation Nr: 1312358 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-43 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to October 1974. He has additional unverified service in the Air National Guard and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is associated with the claims folder. The Veteran requested that the hearing record be kept open to allow him to submit additional evidence. The Veteran submitted evidence in the form of a private audiogram that was received at the Board in April 2011. The Veteran also submitted a waiver of consideration of the evidence by the agency of original jurisdiction (AOJ) in the first instance. The Board will consider the evidence in its appellate review. 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. REMAND The Veteran submitted his original claim for service connection for bilateral hearing loss in January 2010. He submitted a private audiogram from Provident Ear, Nose, and Throat (ENT) that was also dated in January 2010. The audiogram depicted severe hearing loss in the right ear. The Veteran had no results for speech discrimination testing of the right ear due to the severity of the hearing loss. There were results for decibel loss and speech discrimination for the left ear. However, the report clearly noted that the Maryland CNC test was not used in testing the Veteran's speech discrimination. Thus, the report cannot be used for evaluating the Veteran's hearing impairment. See 38 C.F.R. § 4.85(a) (2012). The Veteran was afforded a VA audiology examination in May 2010. Audiometric testing at that time demonstrated the following decibel losses at the tested frequencies: HERTZ May 2010 1000 2000 3000 4000 Average RIGHT 90 100 100 105 99 LEFT 25 25 60 60 43 The Veteran could not be tested for speech recognition in the right ear. He had a score of 94 percent for the left ear. The examiner provided an opinion that linked the Veteran's current hearing loss in the right ear to his military service. The examiner noted a threshold shift in the Veteran's hearing in the right ear from the time of his enlistment examination to his separation examination. The RO granted service connection for bilateral hearing loss, and awarded a 10 percent rating in June 2010. The grant was said to be based on 38 U.S.C.A. § 1160 (West 2002 & Supp. 2012). This provision provides that, where a veteran has deafness compensable to a degree of 10 percent or more in one ear as a result of a service-connected disability, the deafness in the nonservice-connected ear will be rated as if service-connected. See 38 C.F.R. § 3.383 (2012). The Veteran disagreed with the 10 percent rating in June 2010. The Veteran testified at his Travel Board hearing that he had received treatment for his hearing loss over the last year from VA. In particular, he had been issued hearing aids and was followed in the audiology clinic. The AOJ has not yet had an opportunity to obtain those records. On remand, all outstanding VA records relating to the Veteran's hearing loss disability should be obtained. The Veteran also testified that he believed his hearing loss disability had gotten worse since his VA examination. As noted in the Introduction, the hearing record was kept open to allow the Veteran to submit additional evidence. The Veteran submitted an audiogram from Provident. The current audiogram was dated in April 2011. The report shows that the Maryland CNC was not used to test the Veteran's speech recognition. Thus, as with the prior Provident audiogram, the results cannot be used to evaluate the Veteran's hearing impairment. As the claim is to be remanded to obtain outstanding VA records, and in light of the last VA examination dating to May 2010, the Veteran should be afforded a current examination to assess his service-connected hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his hearing loss disability. The RO/AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. The Veteran should also be advised that, if he elects to submit private audiograms in support of his claim, the audiologist should use the Maryland CNC test when evaluating the Veteran's speech recognition. The Veteran testified at his hearing in February 2011 that he was receiving current treatment from VA, to include being issued hearing aids within the previous year. He identified the VA facility. Those records must be obtained and associated with the claims folder. 2. Upon completion of the above, the Veteran should be afforded a VA audiology examination to assess his current level of bilateral hearing loss disability. The claims folder must be provided to the examiner and reviewed as part of the examination. The examiner must indicate in the examination report that such a review occurred. In addition to the necessary audiometric testing required for the examination, the examiner must address the effect of the disability on the Veteran's occupational functioning and daily activities. 3. The RO/AMC must ensure that the medical examination report and opinions comply with this remand and the questions presented in the request. If the report and/or opinion are insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the RO/AMC should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO/AMC. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 MARTIN 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).