Citation Nr: 1318888 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-32 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1952 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's service-connected bilateral hearing loss is currently rated as noncompensable. He asserts that a higher disability rating is warranted. The Veteran last underwent VA examination in connection with his claim in June 2009. At the May 2013 Board hearing, the Veteran testified that his hearing loss had worsened in severity since the last VA examination. Specifically, he contended that he could no longer hear out of his left ear. The Veteran also asserted that the hearing aids with which VA had provided him 5 years prior no longer aided in his hearing. In Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993), the United States Court of Appeals for Veterans Claims (Court) found that, when a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95; see also Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). In this case, the May 2013 testimony indicating an increase in the severity of the Veteran's symptoms since the prior VA examination is enough to require a new VA examination. In addition, the Veteran asserted in his February 2008 Notice of Disagreement and his September 2009 Substantive Appeal that he had difficulty understanding the VA examiner who performed the examinations in October 2007 and June 2009. In order to afford the Veteran any and all assistance, the Board will request that the new VA examination be performed by a qualified examiner other than the VA examiner who performed the previous examinations. Finally, the Board notes that the Veteran submitted a July 2007 audiological evaluation performed by a private physician, Judith Dunne, in support of his claim. The record reflects the results of puretone audiometric testing and speech discrimination scores. However, the evidence does not specify whether the speech discrimination scores were obtained using the Maryland CNC controlled speech discrimination tests. For VA purposes, an examination must be conducted by an audiologist and must include speech discrimination testing using a Maryland CNC word list and a puretone audiometric test. 38 C.F.R. § 4.85(a). In Savage v. Shinseki, 24 Vet. App. 259 (2011), the Court found that it was error for VA not to seek clarification from a private doctor as to whether an audiological hearing report was based on the Maryland CNC test or explain why such clarification was not needed or was unreasonable. Id. at 272. As such, on remand the RO should request that the private physician clarify whether the scores reported in July 2007 were determined using the Maryland CNC test. Accordingly, the case is REMANDED for the following actions: (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. Seek clarification from Judith Dunne regarding the July 2007 audiological findings to determine whether the Maryland CNC speech discrimination test was performed. 2. Schedule the Veteran for a VA audiological examination to determine the current nature and severity of his service-connected bilateral hearing loss. The examination should be performed by an examiner other than the author of the October 2007 and June 2009 VA examination reports. The claims folder and a copy of this Remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The findings of puretone decibel loss at 1000, 2000, 3000, and 4000 Hertz must be numerically reported, and speech discrimination percentage results derived using the Maryland CNC word list must be reported. The examiner must also specifically address the effect of the Veteran's bilateral hearing loss on his occupational functioning and daily activities and inquire as to the situations in which his hearing loss causes the greatest difficulty. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. When the development requested has been completed, readjudicate the claim of entitlement to a compensable rating for bilateral hearing loss. If any benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).