Citation Nr: 1319033 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 12-35 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable evaluation for a service-connected bilateral hearing loss disability. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active duty from November 1953 to November 1955 with additional, subsequent service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In February 2013, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2013, the Board remanded this matter for further evidentiary development. The Board's prior remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim has been returned to the Board. 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 AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the March 2013 remand, the Board directed that identified, outstanding private treatment records from Dr. Britt and Liberty Hearing Aids should be obtained by the RO/AMC with the Veteran's assistance. Thereafter, the Veteran was to be afforded a VA examination to determine the current severity of his bilateral hearing loss disability, as the Veteran averred at the February 2013 hearing that his hearing acuity had worsened since the most recent VA audiometric testing was completed in April 2011. Later that month, the AMC provided the Veteran with several VA Forms 21-4142 (Authorization and Consent to Release Information), and instructed him to complete and submit a release for each private institution from which he had received medical treatment for his service-connected bilateral hearing loss disability. The Veteran submitted a completed release for Dr. Britt, only. This release yielded a January 2013 audiometric testing report from Dr. Britt which, although in graphical form, shows that the Veteran's decibel thresholds had worsened since his last VA audiogram in April 2011. A hand-written notation on this report from Dr. Britt reflects "fair" reliability in the testing results, noting that the Veteran was "hesitant to respond to speech or puretone" testing. Thereafter, the Veteran was afforded a VA examination in connection with his claim in May 2013, the report of which reflects the examiner's statement that the test results were not valid for rating purposes. In providing this statement, the examiner noted that the behavioral test results did not match up with the objective test measures, and after reinstruction, some puretone results improved significantly. The examiner concluded that the entirety of the test results were considered inconsistent and indicative of non-organic hearing loss. (See the May 2013 VA examination report.) In sum, the record reflects that the Veteran's service-connected bilateral hearing loss disability has worsened since the April 2011 VA examination; however, the reliability of the only audiometric testing since that time has been called into question by a private audiologist and the May 2013 VA examiner. In the present case, the Board concludes that the Veteran should be afforded another VA examination in connection with the present claim in an effort to accurately assess his current level of hearing impairment. As the United States Court of Appeals for Veterans Claims (the Court) stated in Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 (1996). As such, the Veteran is here advised that if he does not cooperate, VA may not be able to obtain evidence necessary to substantiate his claim. As this claim is being remanded, the Veteran should be asked to identify any further outstanding private or VA treatment records which may be pertinent to his claim. With his assistance, such records identified by the Veteran should be obtained and associated with the record. In light of above as well as the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts to obtain any identified and pertinent private treatment or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Accordingly, the case is REMANDED for the following actions: (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. Provide the Veteran a VA Form 21-4142, and request that he identify the full name and address of all providers of medical treatment and/or evaluation of his hearing loss disability. The Board is particularly interested in any records from Dr. Britt and/or Liberty Hearing Aids which are not already associated with the file. Once the requested information and authorization has been obtained, attempt to obtain all such identified records for inclusion in the Veteran's claims file or Virtual VA electronic file. All attempts to obtain those records should be documented in the claims file. In light of above as well as the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts to obtain any identified and pertinent private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If the VA is unsuccessful in obtaining any identified records, the Veteran and his representative should be so notified. 2. Obtain and associate with the claims file or Virtual VA file all records of VA treatment dated from March 11, 2013. 3. After associating any evidence received in response to the above request to the claims folder or electronic record, schedule the Veteran for a VA audiological examination, to include puretone audiometry testing and a controlled speech discrimination test using the Maryland CNC word list. Auditory thresholds in decibels, for the right and left ears, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores, for the right and left ears, using the Maryland CNC word list, must be provided. The examiner must provide findings as to the impact of the Veteran's bilateral hearing loss disability on his daily functioning. The claims folder must be made available for review by the examiner in conjunction with the examination. If the examiner finds that the testing results are unreliable or otherwise not valid for rating purposes, he/she must state the reasons for this conclusion, citing specific examples and testing results. 3. Following completion of the foregoing, readjudicate the claim in light of all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further 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). _________________________________________________ U. R. POWELL 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).