Citation Nr: 1314322	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  10-22 834A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial evaluation greater than 10 percent for tinnitus.

2.  Entitlement to an increased evaluation above 10 percent for bilateral hearing loss for the period up to May 4, 2009.

3.  Entitlement to an increased evaluation above 10 percent for bilateral hearing loss after May 4, 2009. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from October 1945 to January 1947.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran service connection and a 10 percent initial evaluation for tinnitus, effective February 18, 2009 (i.e., the date on which he filed his successful application to reopen his claim for VA compensation for tinnitus), and denied his claim for an increased evaluation above 10 percent for his service-connected bilateral hearing loss.

The Board notes at this juncture that the Veteran was scheduled for a videoconference hearing to be held in April 2013 at the RO before the Board.  He failed to appear for the hearing and provided no timely explanation showing good cause as to why he could not appear for it, nor did he submit a timely request for a rescheduled hearing.  His hearing request is thusly deemed to have been withdrawn.  See 38 C.F.R. § 20.704(d) (2012).  The Board will now proceed with the adjudication of his appeal.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).  

For the reasons that will be discussed below in the REMAND portion of this decision, the issue of entitlement to an increased evaluation above 10 percent for bilateral hearing loss after May 4, 2009 is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  The Veteran and his representative will be advised if any further action is required on their part. 





FINDINGS OF FACT

1.  The Veteran's service-connected tinnitus is assigned an initial 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260.  

2.  The objective audiological evidence demonstrates that for the period up to May 4, 2009, the Veteran's bilateral hearing loss was manifested by no greater than Level II hearing acuity in the right ear and Level VII hearing acuity in the left ear.


CONCLUSIONS OF LAW

1.  There is no legal basis for the assignment of an initial schedular evaluation in excess of 10 percent for bilateral tinnitus.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

2.  The criteria for an evaluation above 10 percent for bilateral hearing loss were not met at any time during the period up to May 4, 2009.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

(a.)  Entitlement to an initial evaluation greater than 10 percent for tinnitus.

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Board has considered whether further development of this claim is warranted under the VCAA or previously existing law.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  However, as will be further discussed below, the claim for a higher initial rating above 10 percent for tinnitus is being denied as a matter of law; therefore, no further development under the VCAA or previously existing law is warranted.  Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180 (2004). 

The RO granted the Veteran service connection and a 10 percent initial evaluation for tinnitus by rating decision dated in August 2009.  The Veteran now appeals the initial evaluation assigned, seeking a rating in excess of 10 percent for tinnitus.

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that VA was allowed deference in interpreting its own regulations, specifically 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is perceived unilaterally or bilaterally.  

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  38 C.F.R. §4.87, Diagnostic Code 6260 (2012).  As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, the Veteran's appeal in this regard must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of the Veterans Claims Assistance Act have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).

The Board also finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (2012).  The United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  However, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the Veteran's tinnitus is not adequately addressed by the regular rating schedule.  The evidence does not reflect that his service-connected tinnitus affects his daily life in a markedly unusual or exceptional way.  Generally, the ratings provided in the rating schedule are considered adequate to compensate for a given disability.  VAOPGCPREC 6-96.  See also, Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

(b.)  Entitlement to an increased evaluation above 10 percent for bilateral hearing loss up to May 4, 2009.

The Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

With respect only to the issue of entitlement to an increased rating above 10 percent for bilateral hearing loss up to May 4, 2009, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

With respect to that portion of the increased rating claim for hearing loss decided herein, this issue stems from an application to reopen the claim for a rating increase that was filed in February 2009.  The Board notes at this juncture that prior to this application, the RO had considered and denied the Veteran's earlier claim for a rating increase for hearing loss in a rating decision dated October 2007.  The claims file does not indicate that the Veteran submitted any new and material evidence pertinent to his bilateral hearing loss within the one-year appellate period following the October 2007 rating decision.  Thusly, the October 2007 rating decision is final and the current appeal pertains only to the August 2009 rating decision.  See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (2011).  

The Board observes that following receipt of the Veteran application to reopen his claim for an increased rating for bilateral hearing loss, VCAA notice letters that, collectively, address the applicability of the VCAA to these claims and of VA's obligations to the appellant in developing the claims that satisfied the above-described mandates, as well as the requirements that the claimant be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006), were dispatched to the Veteran in April 2009 and May 2010.  To the extent that a timing of notice defect with respect to these VCAA notice letters exists, as fully compliant notice was not provided until after the initial adjudication of the claim in the August 2009 RO rating decision now on appeal, as the later notice was followed by a subsequent readjudication in a rating decision/ statement of the case issued in May 2010, the defective notice error is deemed to be cured.  [See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006): The issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect.]

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  As the current claim was filed on February 18, 2009, the pertinent period at issue commences one year prior to date of claim (i.e., February 18, 2008), pursuant to 38 C.F.R. § 3.400(o)(2) (2012).  In this regard, with respect only to the rating claim as it pertains to the state of the Veteran's bilateral hearing loss up to May 4, 2009, the Board observes that all relevant evidence for the period from February 18, 2008 up to May 4, 2009 have been obtained and associated with the claims file.  VA has provided the Veteran with a VA audiological examination in conjunction with his claim on May 4, 2009.  Although the clinician who conducted this examination did not have the Veteran's claims file available for review, this does not render the examination report invalid for rating purposes as the examination involved objective tests to evaluate and quantify the Veteran's hearing loss that adequately present a picture of the state of his impairment for the period up to May 4, 2009.  Furthermore, the impact of the Veteran's hearing loss on his occupational capacity and daily activities was addressed by the examining clinician, pursuant to Martinak v. Nicholson, 21 Vet. App. 447 (2007), and her clinical assessment of the current severity of the claimant's bilateral hearing loss is supported by objective rationales based on the clinician's observations.  Thusly, the Board finds no defect in the aforementioned examination of record and it is deemed to be adequate for purposes of adjudicating that portion of the increased rating claim decided herein.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his claim for an increased rating for bilateral hearing loss up to May 4, 2009, decided herein, and thus no additional assistance or notification is required.  The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of this portion of the hearing loss issue on appeal.

The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  

While the Veteran's entire history is reviewed when assigning a disability evaluation (see 38 C.F.R. § 4.1), where an award of service connection has already been established and only an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).

Only independent medical evidence may be considered to support medical findings.  The Board is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (i.e., the objectively quantified severity of his bilateral hearing loss at specific frequencies) falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Consequently, his contentions alone regarding the perceived severity of his hearing loss cannot constitute competent medical evidence for purposes of objectively rating his level of impairment.  38 C.F.R. § 3.159(a)(1) (2012).  The Board notes in this regard that the determination of the level of hearing loss for rating purposes is through audiometric testing using instrumentation that a layperson cannot approximate through his or her sensory perception.
 
The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2012).  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The tests are conducted without the use of hearing aids.  See 38 C.F.R. § 4.85 (2012).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2012).  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e) (2012).

If puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a) (2012).

When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b) (2012).

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.  38 C.F.R. § 4.85(a) (2012).

The Board notes that for the period commencing on February 18, 2008, up to May 4, 2009, VA audiology records show, in pertinent part, that the Veteran received routine clinical evaluation of his ears and inspection and maintenance of his VA-issued electronic hearing aids.  

On VA audiological evaluation on May 4, 2009, the Veteran's pure tone thresholds, in decibels, were as follows:
	


HERTZ



1000
2000
3000
4000
RIGHT
40
50
60
65
LEFT
65
65
70
80

Pure tone averages were 53.75 decibels for his right ear and 70 decibels for his left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 60 percent in the left ear.  These audiological findings correspond to a Level II hearing in the right ear and Level VII hearing in the left ear.  38 C.F.R. § 4.85, Table VI and VIA (2012).  Under Table VII, a designation of Level II hearing in the right ear and Level VII hearing in the left ear yields a 10 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).  As the Veteran's hearing thresholds are all greater than 55 decibels in each of the frequencies 1000, 2000, 3000, and 4000 Hertz in his left ear, he also meets the criteria for exceptional patterns in hearing impairment to be afforded consideration under 38 C.F.R. § 4.86(a).  This would result in a designation of Level VI for his left ear, which does not provide an avenue for a rating above 10 percent on application of Table VII.  Neither ear demonstrates the required pure tone thresholds for application of 38 C.F.R. § 4.86(b).  The audiological diagnosis was bilateral sensorineural hearing loss.  Per Martinak v. Nicholson, 21 Vet. App. 447 (2007), the examining audiologist opined that the Veteran's bilateral hearing loss would have no significant effects on his occupational capacity and no effects on his usual daily activities.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss and the inconvenience of having to use hearing aids.  However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results obtained on VA-authorized clinical examinations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board finds that the clinical evidence does not demonstrate bilateral hearing loss to level of impairment greater than 10 percent on strict application of the rating schedule for the period up to May 4, 2009.

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

Although the Veteran is presently retired, for the period up to May 4, 2009, the evidence demonstrates that the Veteran's bilateral hearing loss causes no significant effects in occupational functioning.  While it is conceded that his hearing loss disability can nevertheless impose a degree of interference with his occupational functioning, there is no objective evidence in the present case that demonstrates that the Veteran's hearing loss has actually resulted in a marked level of interference with his capacity for employment.  As such, the Board cannot concede that the Veteran's hearing loss alone causes marked interference with his capacity for employment.  The level of impairment objectively demonstrated is contemplated by the rating criteria for a 10 percent evaluation.  The Board thus finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (2012).  That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the Veteran's bilateral hearing loss disability is not adequately addressed by the regular rating schedule.  Although the Veteran may have difficulty hearing spoken conversations because of his impaired hearing, the evidence does not reflect that his service-connected hearing loss affects his daily life in a markedly unusual or exceptional way.  Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  VAOPGCPREC 6-96.  See also, Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  His claim for an evaluation in excess of 10 percent up to May 4, 2009 for bilateral hearing loss is therefore denied.


ORDER

An initial evaluation in excess of 10 percent for service-connected tinnitus is denied.

An increased evaluation above 10 percent for bilateral hearing loss for the period up to May 4, 2009 is denied.


REMAND

With regard to that part of the Veteran's claim for an increased evaluation above 10 percent for bilateral hearing loss after May 4, 2009, the Board observes that the claims file includes a VA audiometric examination report dated in September 2010, which was conducted in association with the Veteran being fitted with binaural electronic hearing aids.  Although this report is relevant to the claim at issue, it is presented only as raw audiometric data on a graph.  In its present format, the Board cannot use it for rating purposes.  A remand is therefore warranted to have this report interpreted by the appropriate clinician and presented in a format that would allow VA adjudicators to use it to rate the hearing loss claim.  [See Colvin v. Derwinski, 1 Vet. App. 171 (1991): the Board is required to consider only independent medical evidence to support findings and cannot provide its own medical judgment or interpretations regarding raw clinical data.]
      
The Veteran has presented written statements attesting that his hearing loss has worsened since the time of the May 4, 2009 VA audiological examination and requested a new examination to assess the current state of his hearing impairment.  In an April 2013 informal hearing presentation, the Veteran's representative contends that a new audiological examination is also warranted.  As the objective findings on examination on May 4, 2009 are now nearly four years old and, in view of the statements of the Veteran indicating that his perceived hearing acuity has become worse over the course of the ensuing time since this last examination of record, the Board finds it appropriate to remand this part of his claim for a rating increase for bilateral hearing loss so that the Veteran may be scheduled for an audiological examination to assess the current state of this disability.  See Weggenmann v. Brown, 5 Vet. App. 281 (1993).  The scheduled examination should also include discussion from the examiner describing the impact that the Veteran's hearing loss has on his occupational functioning and daily activities, in compliance with the Court's holding in the case of Martinak v. Nicholson, 21 Vet. App. 447 (2007).   

Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC 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 Veteran should be contacted and asked to provide detailed information regarding all sources of medical treatment, both VA and private, for his bilateral hearing loss.  After obtaining the necessary waivers where appropriate, the RO should attempt to obtain copies of those medical records identified by the Veteran which have not already been made a part of the evidence for inclusion in his claims file.

2.  The September 2010 VA audiometric test report and any other audiometric test report of record containing raw clinical data on graphs should be interpreted by the appropriate clinician, who should then provide a report presenting this data in a format that VA rating specialists can use to adjudicate hearing loss claims, using the criteria for rating hearing loss provided in 38 C.F.R. § 4.85.    

3.  The Veteran should be scheduled for the appropriate clinical examination to evaluate the current severity of his service-connected bilateral hearing loss.  The Veteran's claims file should be provided to the examiner in conjunction with the examination.  All tests and studies deemed appropriate to assess the severity of the hearing disability should be conducted.  Following the examination, the examiner should provide an opinion as to the impact of the Veteran's hearing loss on his occupational functioning.  (See Martinak v. Nicholson, 21 Vet. App. 447 (2007)).   

Pertinent documents in the claims folder must be reviewed by the VA audiological examiner, who should provide a complete rationale for any opinion given without resorting to speculation, reconciling any conflicting medical opinions rendered.  Any additional examinations, tests, or studies necessary for an adequate opinion should be conducted.  

4.  The Veteran is hereby reminded of his obligation to appear for the scheduled examination.  His failure to appear may result in the disallowance of this claim.  See 38 C.F.R. § 3.655 (2012).

5.  After undertaking any other development deemed essential in addition to that specified above, the RO should readjudicate the Veteran's claim for an increased evaluation above 10 percent for bilateral hearing loss for the period after May 4, 2009, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand.  If the maximum benefit with respect to this issue is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and given an appropriate amount of time to respond.  Thereafter, the case should be returned to the Board, if 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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs