Citation Nr: 1313601 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 99-03 637A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1977 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part reopened a previously denied claim of service connection for hearing loss, and denied the claim on the merits. In an October 2007 decision, the Board affirmed the decision to reopen the previously denied claim, but remanded the underlying claim on the merits for further development. The claim was again remanded for development in August 2009. The Veteran testified at personal hearings before a Veterans Law Judge (VLJ) in September 2006 and May 2009. The former was held at the RO, and the latter at the Board's Washington, DC, offices. Transcripts of both are associated with the claims file, though that of the September 2006 hearing reflects poor audio quality. In July 2012 correspondence, the Veteran was informed that the VLJ who had presided over his September 2006 and May 2009 hearings was no longer employed by the Board. The law requires that a VLJ who conducts a hearing must participate in any decision on that issue. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. Accordingly, the Veteran was offered a new hearing, which he accepted. The claim was therefore again remanded in August 2012 for scheduling of a hearing at the RO before a VLJ. Such Travel Board hearing was held in March 2013 before the undersigned; a transcript of the hearing is associated with the Veteran's electronic claims file, maintained as part of the Virtual VA system. The Board has reviewed all the electronic records maintained in the Virtual VA system as well as the Veteran's physical claims file to ensure review of the totality of the evidence. In a December 2011 post-remand brief, the Veteran's representative argued that the Veteran's claim for entitlement to service connection for hearing loss encompasses a claim for entitlement for a mental disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that case, the Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The CAVC recognized that, "the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition." Id. at 5. The CAVC further considered the intent of the appellant, noting that "a different result is reached when the evidence supports the service connection of a disability, but there is no indication the claimant was seeking benefits for that disability or the symptoms he was experiencing that are associated with that disability." Id. at 7. In this case, the Board does not agree with the representative, that a claim for hearing loss encompasses a claim for a psychiatric disability. However, as the issue of entitlement to service connection for a psychiatric disability has been raised by the record, but has not yet been adjudicated by the agency of original jurisdiction, the Board refers this claim to the AOJ so that appropriate action may be taken. 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 In connection with the Veteran's earlier claim of service connection for hearing loss, an audiometric examination was provided in May 1999, which showed that there was no current hearing loss disability in either the right or the right ears, although further upward movement of puretone thresholds was demonstrated. The results were: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 30 25 25 25 30 94 LEFT 15 25 25 20 30 94 In May 2005, another VA audiometry was preformed which was also reportedly valid for evaluation purposes; VA treatment notes state that testing was "within normal limits in both ears." The specific objective findings are not reflected in the record; repeated attempts to obtain such by VA and the Veteran have proven fruitless. Between March 1999 and April 2010, VA made five additional attempts to perform audiometric testing and obtain valid, reliable results on which to adjudicate the Veteran's claim. In each instance, however, the audiologist reported that the results were not reliable; the Veteran's auditory behavior was completely at odds with his results. Results were internally inconsistent and not reproducible. One examiner stated that the evidence showed a "pattern over years of his faking test results repeatedly." The Veteran has disputed VA's characterization of his effort and actions at testing; he instead alleges that the examiners are biased against him. The file reflects that the Veteran does have a history of making threats, and he has reported that when working at the VA medical center, he was critical of one of the doctors who was then scheduled to perform a compensation examination. He has submitted reports of two private audiometries to demonstrate that valid results can be obtained. The Iowa Clinic tested the Veteran in April 2009, while Robinson audiometry saw the Veteran in June 2010. Neither private provider commented on the validity of the testing. However, in reviewing the audiographs, an apparent discrepancy in testing results between the two providers was noted. The process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. While the Court may not do so, citing such as "fact finding," the Board and the AOJ, as triers of fact, are entitled to do so. Kelly v. Brown, 7 Vet. App. 471 (1995). The April 2009 testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 35 / 35 LEFT 15 15 15 / 15 June 2010 testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 60 / 65 LEFT 10 15 15 / 15 Thresholds on the right at 2000 and 4000 Hertz are markedly different. The June 2010 examiner did report fairly recent ear drainage, and use of medication for an apparent infection, which may explain the difference. The evidence of record is unclear as to whether there is any current hearing loss disability for VA purposes in either ear. VA testing is negative, but private testing supports the allegation. However, the private testing may itself be unreliable. The Veteran has consistently and competently reported hearing impairment since 1998, and has presented corroborating ay statements from friends and acquaintances describing difficulty hearing over the years. In light of the conflicting evidence, the Board has determined that one last attempt to obtain clearly valid audiometric testing results is necessary. The Veteran is cautioned that this is the final attempt, and a demonstrated failure to cooperate with the examination may negatively impact his claim. 38 C.F.R. § 3.655. However, in light of the bias allegations of record, the Board feels that the Veteran's request for examination at a VA facility other than the VA medical center (VAMC) in St. Louis is reasonable. He has suggested the Des Moines, Iowa, VAMC. On remand, a VA audio examination at an appropriate VA facility or contract location must be accomplished. The Board notes that an evaluation was apparently performed at the St. Louis University Hospital in November 2007. The July 2008 VA examiner refers to the results, but they do not appear to have been associated with the claims file. These records should be obtained prior to performance of the examination on remand. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to obtain a complete report of a November 13, 2007, VA contract evaluation of the Veteran's hearing from St. Louis University Hospital. If necessary, a release should be obtained from the Veteran to facilitate obtaining the records, which must include the actual puretone threshold and other objective test results obtained. 2. After completing the above, schedule the Veteran for a VA audio examination at a VA facility or with a VA contractor other than the VA Medical Center in St. Louis. The claims file must be reviewed in conjunction with the examination. The examiner is notified that in-service acoustic trauma is established. The examiner must perform all required testing, to include audiometry and speech recognition tests, and must clearly state whether results obtained are valid for evaluation purposes. If they are not, the reason must be set forth, to include discussion of the Veteran's level of cooperation or malingering, and the possible impact of any recent ear infections or treatment. If valid test results are obtained, the examiner must state whether a diagnosis of any hearing disability for VA purposes is warranted, and if so, whether such is at least as likely as not caused or aggravated by service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is asked to provide the underlying reasons for any opinion expressed. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BETHANY L. BUCK 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).