Citation Nr: 1314622 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-38 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from June 1956 to July 1960 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 The Board finds that additional development is necessary before the claim on appeal can be adjudicated. First, the Veteran should be scheduled for an additional VA examination to ascertain the current severity of his service-connected bilateral hearing loss. In this regard, he has asserted that his bilateral hearing loss has worsened since his last VA examination in November 2008, and he has specifically requested a new VA examination. See e.g., October 2009 VA Form 9; April 2013 Appellant's Brief. The Board notes that it has been well over four year since his last examination. Moreover, VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a more recent VA examination is necessary in this case. This VA examination should also include a statement as the effect of his hearing loss on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Board acknowledges the Veteran's request that a private or QTC examiner conduct any future audiological examination. See October 2009 VA Form 9; April 2013 Appellant's Brief. However, there is no requirement under the law that the Board comply with such a request. The Federal Circuit has held that both the competence of a VA examiner and the adequacy of a VA examination and opinion are to be assumed unless appropriately challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). In this case, there is no reason to believe that any objective testing performed by VA would be inadequate or prejudicial. Indeed, the regulations require a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, regardless of whether it is performed by a private or VA audiologist. See 38 C.F.R. § 4.85. Thus, either type of examiner would be using the exact same objective testing methods. Moreover, the Veteran is advised that he is also free to submit a hearing loss testing from a private audiology examiner of his choice, as long as the controlled speech discrimination test administered by a state-licensed audiologist is the Maryland CNC Test, and puretone thresholds are conducted at 1,000, 2,000, 3,000 and 4,000 Hertz. Second, a remand is required for clarification of a January 2009 private audiology report. VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). As part of this duty, if further clarification of certain evidence is essential for a proper appellate decision, the Board shall remand the case to the RO and specify the action to be undertaken. See 38 C.F.R. § 19.9(a). The U. S. Court of Appeals for Veterans Claims (Court) has held that, pursuant to 38 U.S.C. § 5103A(a), that when a private examination report "reasonably appears" to contain information necessary to properly decide a claim, but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. This duty should be undertaken when the burden on VA in obtaining this missing information is minimal. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). The results of the January 2009 private audiogram were provided in graphic representations without interpretation as to the exact puretone thresholds found at the appropriate frequencies. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graphical form and can remand uninterpreted audiograms for interpretation). In addition, it was unclear whether the speech discrimination testing was conducted using the Maryland CNC test. See 38 C.F.R. § 4.85(a) (the controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test). Finally, it was unclear whether puretone thresholds readings were conducted at 3,000 Hertz. Without puretone thresholds readings at 3000 Hertz, this private audiology report would not be adequate or suitable for rating hearing loss for VA purposes. See 38 C.F.R. § 4.85(d) (the puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz, divided by 4). Therefore, further clarification from the private audiologist of these discrepancies should be undertaken on remand. Third, the Board notes that the claims file does not contain any VA treatment records dated since October 2006. Because the Board is already remanding the case in order to secure a more recent VA audiology examination, any additional VA treatment records dated after October 2006 should also be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding treatment records from the VAMC in Dallas, Texas, dated since October 2006. All attempts to secure these records, and any response received, should be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO/AMC should contact the audiologist who conducted the January 2009 private audiogram for purposes of clarification of the graphical audiogram. The audiologist should be asked to: (i) provide the exact numbers in decibels for the puretone thresholds for each ear at the appropriate frequencies (500, 1000, 2000, 3000, and 4000 Hertz); (ii) clarify whether speech discrimination testing was conducted using the Maryland CNC test; and (iii) clarify whether puretone thresholds readings were conducted at the 3,000 Hertz frequency. All attempts to seek clarification, and any response received, must be documented in the claims file. 3. After securing any VA or private treatment records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected bilateral hearing loss. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences to his claim for an increased rating. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. This VA examination should also include a statement as the effect of the Veteran's hearing loss on his occupational functioning and daily activities. The claims file should be available to the examiner for review. He or she should also provide a complete rationale for any opinions provided. 4. The RO/AMC should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions or testing requested, it must be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the bilateral hearing loss issue on appeal. If the benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). _________________________________________________ JESSICA J. WILLS 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).