Citation Nr: 1313577 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-30 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased initial rating for bilateral hearing loss, currently rated as 0 percent disabling prior to December 10, 2012, and as 10 percent disabling since December 10, 2012. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran was scheduled for a travel board hearing in November 2011. However, the Veteran failed to appear at this hearing. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). The Board remanded this claim for additional development in August 2012. A January 2013 rating decision increased the disability rating for bilateral hearing loss, from 0 percent to 10 percent, effective December 10, 2012. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim. In the August 2012 remand, the Board observed that the Veteran had submitted two private audiological treatment records: one from Southern Ocean County Hospital dated July 2006, and one from Garden State Hearing and Balance Center dated October 2008. In both reports, the private practitioners assigned speech recognition thresholds. However, it was not clear from the reports whether the Maryland CNC word list was used in these examinations. Pursuant to 38 C.F.R. § 4.85(a) 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. In addition the Board recognized that the July 2006 private audiological examination report depicted puretone test results in the form of a graph. The Board is the finder of fact and may interpret the evidence presented when the provided graphical representation is sufficiently clear to permit the proper interpretation. In this case, however, the Board observed that the graph did not show clear decibel measurements at all relevant levels. Thus the graph was not sufficiently clear to permit a proper interpretation. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995); see also Savage v. Shinseki, 24 Vet. App. 259 (2011). In Savage v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, "in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports or progress notes, or the Board must explain why such clarification is not necessary." Savage, 24 Vet. App. at 260. The Court specifically named unclear application of the Maryland CNC test as a circumstance warranting remand. Id. at 270. As such, the Board found that further clarification was needed as to these private audiological reports. The Board instructed that the private examiners should be contacted directly to obtain clarification of these reports, and that if no response was obtained then a VA examiner should provide the information if possible. The record shows that the Veteran underwent another VA audiological examination in December 2012 pursuant to a remand directive. While the VA examiner indicated that it was "unknown" and "unclear" if the testing conducted by the private examiners in 2006 and 2008 complied with VA regulations, ultimately, the record reflects that the private examiners were not directly contacted as instructed in the remand directives. Also, the VA examiner did not assess the numeral decibel levels in all frequencies on the July 2006 private audiogram as instructed in the remand directives. Accordingly, these deficiencies must be remedied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: 1. Contact the private audiological treatment provider, Southern Ocean County Hospital, in Manahawkin, New Jersey, to determine (i) if the Maryland CNC word list was used during audiological testing completed on the Veteran in July 2006; (ii) the numeral decibel levels in all frequencies; and (iii) if this evaluation was performed by a state-licensed audiologist. 2. Contact Garden State Hearing and Balance Center in Whiting, New Jersey to determine (i) if the Maryland CNC word list was used during audiological testing completed on the Veteran in October 2008, and (ii) if this evaluation was performed by a state-licensed audiologist. 3. After completion of the above development, return the December 2012 VA examination report along with the claims file and a copy of this remand to the examiner for an addendum. The VA examiner should assess the numeral decibel levels in all frequencies on the July 2006 private audiogram (i.e., convert the graphical representations into numerical decibel levels). If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above request. 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). _________________________________________________ TANYA A. SMITH Acting 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).