Citation Nr: 1320259 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-02 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating greater than 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the above claim. The March 2012 VA audiological examination report and the Veteran's recent VA treatment records raise an issue as to whether the Veteran has a current left ear disability manifested by ear pain, possibly related to his service-connected tinnitus. This issue constitutes a separate claim that is distinct from the claim for a higher rating for bilateral hearing loss on appeal. See, e.g., Monzingo v. Shinseki, 26 Vet. App. 97, 104-05 (2012) (holding that tinnitus and hearing loss are recognized by the Secretary as two distinct and separate disabilities where different rating codes govern the evaluation of each disability); 38 C.F.R. §§ 4.85, 4.86 (2012) (containing no mention of ear pain). Furthermore, no issue concerning a disability manifested by left ear pain has been explicitly or implicitly adjudicated in a rating decision. Therefore, the Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action. See Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006); Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012) ("[W]hen the Board lacks jurisdiction over a matter, the referral of the matter to the RO is the appropriate action."); 38 C.F.R. § 19.9(b) (2012). Please note 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 (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so he is afforded every possible consideration. The Veteran contends that he is entitled to a higher disability rating for his service-connected bilateral hearing loss. Following receipt of his claim, he was provided with a February 2009 examination with a contract, non-VA audiologist and, shortly thereafter, he underwent a September 2009 VA audiological examination with a licensed VA audiologist. A final VA audiological examination was conducted in March 2012. The March 2012 examiner found that the Veteran's speech discrimination scores were unreliable and directed VA to use only the pure tone threshold data to rate the severity of his hearing loss disorder. However, the March 2012 examiner did not provide a clear or sufficient explanation for the finding that the use of speech discrimination testing data obtained in March 2012 would be inappropriate. The determination appears to be based on the inconsistency of the March 2012 speech discrimination scores compared to the 94 percent speech discrimination score recorded in September 2009, bilaterally, without consideration of the earlier audiological examination reports of record. Specifically, the examiner did not consider the July 2008 audiological examination report, noting Maryland CNC speech discrimination scores of 76 percent on the right and 68 percent on the left ear, or the February 2009 audiological examination report, showing speech discrimination test scores of 76 percent for the right ear and 88 percent for the left, provided by an otolaryngologist and licensed Doctor of Audiology under a contract with VA. As the March 2012 VA examination report did not provide sufficiently explain the direction to disregard the March 2012 speech discrimination scores, this appeal must be remanded for an additional VA audiological examination and opinion resolving the inconsistencies in the speech discrimination testing data. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. § 4.2 (2012). All appropriate efforts should be made to obtain any outstanding VA treatment records and private treatment records that the Veteran would like VA to consider in support of his claims, including any records of treatment provided by the ENT specialist mentioned in the January 2012 VA treatment records. 38 U.S.C.A. § 5103A(b),(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED 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. Obtain the Veteran's outstanding relevant VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Ask the Veteran to identify (i.e. obtain the names, addresses, and approximate dates of treatment) any private medical care providers that have treated him for hearing loss, and to furnish signed authorizations for release for any non-VA sources identified, to include the ENT specialist he reporting receiving treatment from in January 2012. The Veteran should also be asked to submit all relevant records that he has in his possession. Make arrangements to obtain all records that are adequately identified and for which signed authorizations have been obtained. 3. Thereafter, schedule the Veteran for a VA audiological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported. The examiner should also fully describe the functional effects caused by the Veteran's bilateral hearing loss disability. The examiner must review the Veteran's speech discrimination testing data from July 2008, February 2009, September 2009, and March 2012, and provide an opinion on whether the data obtained at each examination is reliable and may be appropriately used to evaluate the severity of the Veteran's hearing loss disability. The goal of the examiner should be to explain, if possible, the reason for any discrepancy, and to reconcile the differences in the data reported where possible. This opinion, in addition to all other conclusions provided in the examination report, must be supported by a complete rationale that includes full explanation of the data and principles relied on for each conclusion. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. 4. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ K. Parakkal 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).