Citation Nr: 1314479	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  12-27 188A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss for the period through December 16, 2011.

2.  Entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss for the period from December 17, 2011, to February 8, 2012.

3.  Entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss for the period beginning February 9, 2012.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1944 to November 1947.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Service connection was granted and an initial noncompensable evaluation was assigned for bilateral hearing loss therein.  The Veteran appealed this determination.

In an October 2012 rating decision, the RO increased the initial evaluation for bilateral hearing loss to 30 percent effective December 17, 2011.  The benefit sought by the Veteran partially was granted, in other words.  The increase does not cover the entire period on appeal, however.  It further was not to the maximum level allowable for the period it does cover.  The issue of a higher initial evaluation for bilateral hearing loss therefore remains on appeal split into two issues of an initial compensable evaluation for the period through December 16, 2011, and an initial evaluation in excess of 30 percent for the period beginning December 17, 2011.  AB v. Brown, 6 Vet. App. 35 (1993).  For the reason made clear herein, this latter issue has further been split into two issues of an initial evaluation in excess of 30 percent for the period from December 17, 2011, to February 8, 2012, and for the period beginning February 9, 2012.

The following determinations with respect to the issues of an initial compensable evaluation for the period through December 16, 2011, and an initial evaluation in excess of 30 percent for the period from December 17, 2011, to February 8, 2012, are made based on consideration of the Veteran's claims file and his Virtual VA "eFolder."  The issue of an initial evaluation in excess of 30 percent for the period beginning February 9, 2012, is addressed in the REMAND portion of the decision below based on the same consideration.  As such, it is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  Please note that this matter has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).


FINDINGS OF FACT

1.  Results from a July 2010 VA examination correspond to auditory acuity level III in each ear, and results from a December 2010 private examination similarly correspond at most to auditory acuity level III in each ear.

2.  Results from a December 17, 2011, VA examination correspond to auditory acuity level VI in each ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for bilateral hearing loss for the period through December 16, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for an initial evaluation in excess of 30 percent for bilateral hearing loss for the period from December 17, 2011, to February 8, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty to notify claimants submitting a claim for VA benefits.  38 U.S.C.A. §§ 5103; 38 C.F.R. § 3.159.  Proper notice from VA must inform the claimant and his representative, if any, prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and any evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice thus must include information that a disability evaluation and an effective date will be assigned if the benefit sought is granted.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Via letter dated in March 2010, the Veteran and his representative at the time were informed of the criteria for establishing service connection, the evidence required in this regard, the Veteran's and VA's respective duties for obtaining evidence, and how VA determines disability evaluations and effective dates if service connection is awarded.  They therefore were fully informed prior to the initial adjudication by the RO, which in this case also is the AOJ, in the August 2010 rating decision.  Nothing more is required.  The purpose of notice indeed was fulfilled because service connection, the original benefit sought, was granted in the aforementioned rating decision.  Dingess, 19 Vet. App. at 473.

In addition to the duty to notify, VA has a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA is required to aid the claimant in the procurement of relevant records, whether or not they are in Federal custody.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

VA has obtained the Veteran's VA treatment records.  No private treatment records regarding him have been obtained by VA because none have been identified by him or his representative.  He did submit one private examination on his own behalf, however.  VA examinations were performed in July 2010 and on December 17, 2011.  The former examiner reviewed the Veteran's claims file.  The latter examiner did not, but this is of no import since the Veteran gave an accurate account of his pertinent medical history to this examiner.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  He also did so to the former examiner.  Both examiners interviewed the Veteran regarding his relevant symptomatology.  The former examiner documented his report of hearing difficulty.  The latter examiner documented his report of hearing difficulty specifically in group settings as well as being unable to hear the television or on the telephone.  Each examination thus included a "full description of the effects of disability upon the person's ordinary activity," as is required.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Even if the description from one or both examinations was somehow defective, the Veteran bears the burden of proving resulting prejudice.  Id.  Neither he nor his representative has attempted to do so.  Both examiners finally undertook an auditory assessment of the Veteran.  All of the examiners' actions have provided sufficient detail so that the determinations made herein are fully informed.  As such, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed.  The record also does not indicate any further development.  Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Appellate review therefore may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Higher Evaluation

The Veteran seeks a higher initial evaluation for his bilateral hearing loss.  He contends that it was more severe than contemplated by a noncompensable initial evaluation for the period through December 16, 2011, and has been more severe than contemplated by a 30 percent initial evaluation for the period from December 17, 2011, to February 8, 2012.

A.  Schedular

Disability evaluations are based upon VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage evaluation to be assigned for that disability.  The evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability.  38 U.S.C.A. § 1155.  An evaluation is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by symptomatology, with the criteria for the evaluations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation may accurately compensate the elements of disability present.  38 C.F.R. § 4.2.  If two evaluations are potentially applicable, the higher will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran therefore prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when the evidence is against a higher evaluation.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Consideration must be given to whether a staged evaluation is or staged evaluations are warranted when an initial evaluation is appealed.  Fenderson v. West, 12 Vet. App. 119 (1999).  In staged evaluations, two or evaluations are assigned because a disability meets the criteria for one evaluation during one period on appeal but meets the criteria for another evaluation or evaluations during another or other periods on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Bilateral hearing loss is evaluated pursuant to 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100.  Examinations for hearing impairment must be conducted by a state licensed audiologist.  38 C.F.R. § 4.85(a).  Auditory acuity is measured without hearing aids by a controlled speech discrimination test (Maryland CNC) and a pure tone threshold test in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (hertz).  38 C.F.R. § 4.85(a), (d).  There are eleven auditory acuity levels of hearing impairment, ranging from level I for essentially normal hearing through level XI for profound deafness.  38 C.F.R. § 4.85(b), (c).  

The auditory acuity level present in each ear usually is derived from Table VI, which considers both the pure tone threshold average and the speech discrimination percentage.  38 C.F.R. § 4.85(b).  Table VIa, which considers only pure tone threshold average, is used when the examiner certifies that use of the speech discrimination percentage is not appropriate for reasons such as language difficulties or inconsistent scores.  38 C.F.R. § 4.85(c).  When the pure tone threshold at 1000, 2000, 3000, and 4000 hertz is 55 decibels or more and when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz, which represents exceptional patterns of hearing impairment, the auditory acuity level for each ear is derived from either Table VI or Table VIa depending on which results in the higher level.  38 C.F.R. §§ 4.86(a), (b).  The derived level further is elevated to the next higher level when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  38 C.F.R. § 4.86(b).  Based on the intersection point of the auditory acuity level for each ear, an evaluation for hearing impairment is derived from Table VII.  38 C.F.R. § 4.85(e); Bruce v. West, 11 Vet. App. 405 (1998).

The probative value of the evidence must be assessed.  38 C.F.R. § 4.6.  In other words, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The competency and credibility of any lay evidence therefore must be assessed.  See Layno v. Brown, 6. Vet. App. 465 (1994) (noted that competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  Only the most relevant evidence need be discussed, however, even though all the evidence must be and thus has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  

1.  Period Through December 16, 2011

Pure tone thresholds, in decibels, at the July 2010 VA examination were as follows:  


Hertz

1000
2000
3000
4000
Right
40
40
45
50
Left
30
30
40
50

Pure tone thresholds averaged 44 (rounded from 43.75) decibels in the right ear and 38 (rounded from 37.50) decibels in the left ear.  Use of the Maryland CNC test revealed speech discrimination of 80 percent in right ear and 76 percent in the left ear.

A December 2010 private examination includes pure tone thresholds presented graphically.  The Board may interpret these into numerical thresholds if able to do so.  Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may engage in such interpretation if it felt it had the expertise); Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court cannot engage in such interpretation because it involves fact finding but that the Board, as fact finder, can).  If unable to do so, VA must seek clarification or explain why such clarification is not needed.  Id.  Here, the exact numerical pure tone thresholds or at least a very close approximation thereto is simple and straightforward enough for the Board to interpret from the graph.  The Veteran's pure tone thresholds, in decibels, were as follows:





Hertz

1000
2000
3000
4000
Right
55
45
55
50
Left
55
50
60
45

Pure tone thresholds averaged 51 (rounded from 51.25) decibels in the right ear and 53 (rounded from 52.5) decibels in the left ear.  Word recognition was 90 percent in each ear.  The test used in this regard was not specified.

A February 2011 VA treatment record contains a diagnosis of hearing impairment.  

Given the above, the Board finds that an initial compensable evaluation for bilateral hearing loss for the period through December 16, 2011, is not warranted.  Evaluations for hearing impairment are derived mechanically from the auditory acuity level assigned based on the speech discrimination percentage and/or the pure tone threshold average.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, there is very little judgment involved in determining the evaluation because this percentage is and/or average are dispositive.  

The pure tone thresholds from the July 2010 VA examination and the December 2010 private examination do not represent an exceptional pattern of hearing impairment in either ear.  Therefore, the auditory acuity level for both ears is to be derived only from Table VI.  With respect to the July 2010 VA examination, the pure tone threshold averages and speech discrimination percentages for both ears correspond to an auditory acuity level of III under Table VI.  With respect to the December 2010 private examination, it is unclear whether or not Table VI can be used.  It requires that speech discrimination percentages be obtained utilizing the Maryland CNC test.  Whether this test or some other test was utilized in obtaining the percentages is unknown here.  Assuming the Maryland CNC test was used, the pure tone threshold averages and speech discrimination percentages for both ears correspond to an auditory acuity level of III under Table VI.  Assuming the Maryland CNC test was not used, the speech discrimination percentages cannot be taken into account.  The only remaining option is to use Table VIa.  The pure tone threshold averages and speech discrimination percentages for both ears correspond to an auditory acuity level of III under Table VIa.  As such, the auditory acuity level of each of the Veteran's ears consistently was III.  Under Table VII, the intersection point of auditory acuity level III in the better ear and auditory acuity level III in the poorer ear shows that a noncompensable evaluation is warranted.  

An auditory acuity level of III in each ear signifies that there is some amount of hearing impairment in each ear.  This corresponds with the February 2011 VA treatment record.  It is possible that the Veteran's hearing impairment worsened from an auditory acuity level of III to a higher level in one or both ears at some point after December 2010 and before December 17, 2011.  However, there is no basis for determining this is the case here.  The aforementioned VA treatment record did not include pure tone threshold averages or speech discrimination percentages obtained utilizing the Maryland CNC test.  It indeed did not describe the severity of the Veteran's hearing impairment at all.  No subsequent treatment records or examinations, whether VA or private, exist.

In sum, the preponderance of the evidence is against an initial compensable evaluation for the Veteran's bilateral hearing loss for any portion of the period through December 16, 2011.  There is no reasonable doubt to resolve in the Veteran's favor and a staged evaluation is not appropriate, in other words.

2.  Period From December 17, 2011, to February 8, 2012

Pure tone thresholds, in decibels, at the December 17, 2011, VA examination were as follows:  


Hertz

1000
2000
3000
4000
Right
55
70
75
80
Left
65
70
75
70

Pure tone thresholds averaged 70 in each ear.  Use of the Maryland CNC test revealed speech discrimination of 76 percent in each ear.

Based on the above, the Board finds that an initial evaluation higher than 30 percent for bilateral hearing loss for the period from December 17, 2011, to February 8, 2012, is not warranted.  That evaluations for hearing impairment are derived mechanically from the auditory acuity level assigned based on the speech discrimination percentage and/or the pure tone threshold average is reiterated.  Lendenmann, 3 Vet. App. at 345.  In other words, there is very little judgment involved in determining the evaluation because this percentage is and/or average are dispositive.  

The pure tone thresholds from the December 17, 2011, VA examination represent an exceptional pattern of hearing impairment in both ears.  Therefore, the auditory acuity level for both ears is derived from Table VI or from Table VIa.  The pure tone threshold averages and speech discrimination percentages for both ears correspond to an auditory acuity level of IV under Table VI and of VI under Table VIa.  The auditory acuity level for each ear therefore is VI.  Under Table VII, the intersection point of auditory acuity level VI in the better ear and auditory acuity level VI in the poorer ear shows that a 30 percent evaluation is warranted.

The preponderance of the evidence, in sum, is against an initial evaluation in excess of 30 percent for the Veteran's bilateral hearing loss for any portion of the period from December 17, 2011, to February 8, 2012.  In other words, there is no reasonable doubt to resolve in the Veteran's favor and a staged evaluation is not appropriate.

B.  Extraschedular

As an alternative to assigning an evaluation schedularly, an evaluation may be assigned on an extraschedular basis.  38 C.F.R. § 3.321(b).  There are three steps to be taken regarding extraschedular evaluations.  Thun v. Peake, 22 Vet. App. 111 (2008).  A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made.  If these criteria are inadequate, it second must be determined whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for consideration of an extraschedular evaluation.

Neither the Veteran nor his representative specifically has argued for an extraschedular initial evaluation for the period through December 16, 2011, or for the period from December 17, 2011, to February 8, 2012.  There is no indication that his bilateral hearing loss could not be contemplated adequately by the applicable schedular evaluation criteria set forth and discussed above.  These criteria are based on hearing acuity at various frequencies and on the ability to understand spoken words.  They thus contemplate difficulty hearing and difficulty differentiating spoken words.  It follows that the Veteran's reported symptoms of difficulty hearing the television, on the telephone, and in group settings are addressed by the criteria.  Higher initial evaluations exist pursuant to them.  The initial evaluations continued herein accurately describe the severity of the Veteran's bilateral hearing loss, as explained above, however.  The effect bilateral hearing loss had on him during the aforementioned periods therefore is encompassed by the continued initial evaluations.

Given that the applicable schedular evaluation criteria are adequate, an exceptional bilateral hearing loss picture is not found for the period through December 16, 2011, or for the period from December 17, 2011, to February 8, 2012.  Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Yet it is of note that there is no indication that the Veteran ever has been hospitalized due to his bilateral hearing loss.  It further follows that referral for consideration of the assignment of an initial evaluation on an extraschedular basis is not warranted.  Thun, 22 Vet. App. at 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

III.  Total Disability Evaluation Based on Individual Unemployability

Of final note is that "a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation."  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, the Veteran has not contended his bilateral hearing loss was so severe that it rendered him unable to work during the period through December 16, 2011, or during the period from December 17, 2011, to February 8, 2012..  The evidence further does not indicate that his bilateral hearing loss was so severe that it rendered or even potentially rendered him unable to work one or both of these periods.  The July 2010 VA examination determination that his bilateral hearing loss has significant effects, notably hearing difficulty, on his occupation is acknowledged.  Yet the Veteran's bilateral hearing loss importantly was not determined to preclude his employment.  Thus, consideration of a TDIU as a component of this matter is not warranted.


ORDER

An initial compensable evaluation for bilateral hearing loss for the period through December 16, 2011, is denied.

An initial evaluation in excess of 30 percent for bilateral hearing loss for the period from December 17, 2011, to February 8, 2012, is denied.


REMAND

Although the Board sincerely regrets the delay of a remand, adjudication of the Veteran's entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss for the period beginning February 9, 2012, cannot be undertaken as of yet.  More development is needed.  Such development is necessary to ensure that the Veteran is afforded every possible consideration.  It indeed is reiterated that VA has a duty to assist him in substantiating his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

With respect specifically to aiding the claimant in the procurement of relevant records, reasonable efforts must be made by VA.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c).  Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile.  38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2).  The claimant shall be notified if requested Federal records cannot be or are not obtained.  38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1).

A VA treatment record dated February 9, 2012, shows that the Veteran underwent an audiological evaluation.  In particular, it shows that both a pure tone threshold test and a speech discrimination test were performed.  The speech discrimination test results were set forth, but the particular test utilized to obtain them was not identified.  The nature and severity of the Veteran's was generalized from the pure tone threshold test results, but the individual auditory thresholds for the relevant frequencies were not set forth.  Rather, it was indicated that more information in these regards was available elsewhere.  "Tools - Audiogram Display" specifically was referenced.  

Under 38 C.F.R. §§ 4.85, 4.86, in order for VA to fully and fairly evaluate the severity of the hearing loss from February 9, 2012, the specific information concerning pure tone thresholds and the type of speech discrimination test is required.  However, there is no indication in the claims file or the "eFolder" that any requests have been made to obtain the additional information available in "Tools - Audiogram Display."  As many requests as are necessary to obtain this information, with notification to the Veteran if the requests are unsuccessful, must be made.  VA treatment records indeed plausibly could be expected to be among the evidence before the Board, and thus the Board has constructive notice of their existence.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  Undertaking the following action requires a remand.

If the additional information is obtained on remand and the pure tone thresholds are in graphical rather than numerical format, interpretation is required.  The interpretation, if simple and straightforward as it was above with respect to the period through December 16, 2011, may be performed by the RO or AMC in the first instance and subsequently by the Board.  The interpretation, if difficult or complicated, must be performed by an audiologist or other medical professional with the appropriate expertise.  Savage, 24 Vet. App. at 259; Kelly, 7 Vet. App. at 4715.  

Given the above, a REMAND is directed for the following.  Expedited handling is required because this matter has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c).

1.  Make as many requests as necessary to obtain the additional information in the "Tools - Audiogram Display" for the Veteran's February 9, 2012, VA audiological evaluation.  Associate the additional information received with the Veteran's claims file or "eFolder."  If the additional information ultimately is not received, notify the Veteran pursuant to established procedure.  Document his claims file or "eFolder" as appropriate regarding this paragraph.

2.  If the aforementioned additional information is obtained, the pure tone thresholds are in graphical rather than numerical format, and interpretation of these thresholds is difficult or complicated for the RO or AMC, arrange for an audiologist or other medical professional with the appropriate expertise to perform the interpretation.  Place a copy of the expert interpretation in the Veteran's claims file or "eFolder."

3.  Review the claims file and undertake any additional development indicated.  This shall include making as many requests as necessary to obtain updated VA treatment records, if any, regarding the Veteran.  This also shall include making an initial request and any necessary follow-up requests for any pertinent private treatment records regarding him identified by him on remand and for which he provides authorization for their release rather than submitting them on his own behalf.  Associate any records received with his claims file or "eFolder."  If any records requested ultimately are not received, notify the Veteran pursuant to established procedure.  Document his claims file or "eFolder" as appropriate regarding this paragraph.

4.  Finally, readjudicate the issue of the Veteran's entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss for the period beginning February 9, 2012.  If this benefit is not granted in full, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond.  Place a copy of the SSOC in his claims file or "eFolder."

No action is required of the Veteran until he is notified by the RO or AMC.  However, he is advised that failure to report for any scheduled examination may result in denial of the benefit sought.  38 C.F.R. § 3.655 (2012).  He also is advised that he has the right to submit additional evidence and argument on the issue the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

It is reiterated that this matter must be afforded expeditious treatment because it has been advanced on the docket.  Further, the law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



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


Department of Veterans Affairs