Citation Nr: 1320325 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 07-05 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which denied the issue on appeal. In September 2007, the Veteran testified at a hearing before the undersigned Veterans Law Judge. When this matter was initially before the Board in February 2009, the Board denied entitlement to a compensable rating for right ear hearing loss. The Veteran appealed the Board's February 2009 decision to the United States Court of Appeals for Veterans Claims (Court), which, in a June 2010 order, granted the parties' joint motion for remand, vacating the Board's February 2009 decision and remanding the case for compliance with the terms of the joint motion. Thereafter, in August 2010, July 2011, and January 2013, the Board remanded the case for further development. 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 Although the Board sincerely regrets the additional delay in this long-pending appeal, it is constrained by the fact that proper adjudication requires further development with respect to the Veteran's right ear hearing loss claim. By way of history, the Board observes that an October 1999 rating decision granted service connection and assigned a noncompensable rating for the Veteran's right ear hearing loss, effective November 25, 1996. Nearly six years later, in September 1995, the Veteran submitted a claim for an increased rating for that service-connected disability. In connection with his claim, he was afforded VA audiological examinations in March 2006 and April 2007, which yielded speech recognition scores of 80 percent for his right ear. The Veteran took issue with those clinical findings, asserting that they did reflect the true severity of his right ear hearing loss. Specifically, in his September 2007 Board testimony and other documents of record, he contended that he had recognized no more than two-thirds of the words tested during each of the above VA examinations. The Veteran then requested copies of any reports, or other documentation, detailing the number of words tested and the number of words recognized during those VA examinations. He also requested any available information regarding the processes, formulas, and calculations used to determine his March 2006 and April 2007 speech recognition percentage scores. See May 2007 statement, July 2007 Form 646, September 2007 Board hearing transcript, and August 2010 statement. The Veteran's requests for additional information in support of his hearing loss claim were not addressed in the initial February 2009 Board decision denying that claim. Consequently, the parties to the June 2010 joint motion for remand agreed that the Board's decision should be vacated and that the Veteran's claim should be remanded to the Board for consideration of his aforementioned requests. As noted in the introduction, the joint motion served as the basis for the June 2010 Court order, which was binding on the Board. As such, the Board had no discretion but to remand that claim in order to comply the terms of the joint motion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). In its initial remand, the Board requested that the agency of original jurisdiction (i.e., the RO/AMC) furnish copies of any available reports or other documentation pertaining to the March 2006 and April 2007 VA examiners' use of Maryland CNC testing, to specifically include the numbers of words tested and recognized in the course of such testing. The Board also directed the RO/AMC to fully document all efforts made to obtain the above information, including follow-up requests, as needed, and to obtain a negative response if no such information was available. The Board further stressed that, if and only if such information were obtained, the claims file should be referred to a VA audiologist for an opinion as to whether the previous examiners had applied the appropriate process, calculation, and/or formula in assigning the Veteran a speech recognition score of 80 percent and whether that designated score was consistent with his underlying pure tone thresholds. Notwithstanding the Board's above remand directives, the RO/AMC did not expend sufficient efforts to obtain the requested reports and related documentation pertaining to the Maryland CNC testing conducted at the Veteran's March 2006 and April 2007 VA examinations, including the number of words tested and the number of words the Veteran recognized. In this regard, the Board acknowledges that the RO/AMC did respond to the Board's remand by obtaining additional copies of the March 2006 and April 2007 VA examinations reports. However, those reports were mere copies of evidence that had already been associated with the claims file. Moreover, notwithstanding a notation from the Togus, Maine, VA Medical Center that "[a] determination [had] been made to disclose the information per [the Board's] request in full," no additional information was ever obtained. Nor were there any follow-up attempts to obtain that additional information or any formal findings that such information was unavailable. In light of the foregoing, the Board determined in July 2011 that the RO/AMC had not complied with its prior remand directives and that further development was therefore warranted. Accordingly, the Board issued a second remand of the Veteran's claim, expressly requesting copies of any available reports and/or documents showing the number of words tested and the number of words recognized during the Maryland CNC testing conducted at the Veteran's March 2006 and April 2007 VA examinations. The Board further requested that all reasonable attempts to obtain the additional information should be made and documented, and that, if such information still could not be obtained after reasonable efforts had been exhausted, the RO/AMC should issue a formal determination of unavailability and notify the Veteran of the prior attempts to obtain that information and why further attempts would be futile in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Unfortunately, substantial compliance with the Board's remand directives was not achieved. On the contrary, the RO/AMC appeared to have repeated the same development it previously completed by obtaining yet another copy of the Veteran's March 2006 and April 2007 VA examination reports. Those examination reports, like the ones obtained in connection with the prior remand, contained none of the extra information the Veteran requested regarding the specific numbers of words tested and recognized during his concurrent Maryland CNC tests. Moreover, the record reflects that the RO/AMC had not exhausted reasonable efforts to obtain the additional requested information, nor issued a formal finding of unavailability and provided the requisite notification to the Veteran pursuant to 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Furthermore, notwithstanding the Board's express request to seek an addendum opinion if and only if additional documentation pertaining to the above Maryland CNC testing was obtained, the RO/AMC proceeded to obtain such an opinion from a VA audiologist. In that opinion, rendered in March 2012, the VA audiologist observed that the Veteran's March 2006 and April 2007 VA examinations were performed using the procedures and methodology outlined in the "Handbook of Standard Procedures and Best Practices for Audiology and Pension Examinations," which included "speech recognition testing obtained in quiet using the Maryland CNC 50 word lists presented via CD recording using headphones." The March 2012 VA examiner further noted that the particular VA examination administered in March 2006 "indicat[ed] that the Veteran received an 80 percent (40/50) speech recognition score in the right ear and an 88 percent (44/50) speech recognition score in the right ear [sic] and an 80 percent (40/50) speech recognition score in the left ear." That VA examiner then opined that the speech recognition scores obtained during each of the March 2006 and April 2007 examination were "consistent with the [concurrent] pure tone findings," and that both examinations "were appropriately administered using the correct calculations/formula to obtain speech recognition scores" as set forth in the handbook. The Board observed that the March 2012 VA examiner offered no basis for her findings concerning the propriety of the prior March 2006 and April 2007 VA examinations, including with respect to the speech recognition tests administered therein. Such a lack of supporting rationale was found to diminish the probative value of that examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to any weight); see also Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993) (holding that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). Moreover, the Board observed that the March 2012 examiner's opinion was also incomplete and inaccurate insofar as it appeared to conflate the results of the March 2006 and April 2007 VA examinations. Indeed, that March 2012 opinion stated that the Veteran attained speech recognition scores of both 80 and 88 percent for his right ear during the March 2006 VA examination when, in fact, the 88 percent score was for his left ear. Additionally, that March 2012 VA opinion made no mention of the 80 percent speech recognition score that the Veteran attained during his subsequent April 2007 examination. Such omissions were found to add to the overall inadequacy of the March 2012 VA examiner's opinion. The Board determined in January 2013 that the RO/AMC had, again, not complied with its prior remand directives and that further development was therefore warranted. Accordingly, the Board issued a third remand of the Veteran's claim, expressly requesting copies of any available reports and/or documents showing the number of words tested and the number of words recognized during the Maryland CNC testing conducted at the Veteran's March 2006 and April 2007 VA examinations. The Board further requested that all reasonable attempts to obtain the additional information should be made and documented, and that, if such information still could not be obtained after reasonable efforts had been exhausted, the RO/AMC should issue a formal determination of unavailability and notify the Veteran of the prior attempts to obtain that information and why further attempts would be futile in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Unfortunately, substantial compliance with the Board's remand directives was, again, not achieved. On the contrary, just as before, the RO/AMC appeared to have repeated the same development it previously completed by obtaining yet another copy of the Veteran's March 2006 and April 2007 VA examination reports. Those examination reports, like the ones obtained in connection with the prior remand, contained none of the information the Veteran requested regarding the specific numbers of words tested and recognized during his concurrent Maryland CNC tests. Moreover, the record does not reflects that the RO/AMC has exhausted reasonable efforts to obtain the additional requested information, nor issued a formal finding of unavailability and provided the requisite notification to the Veteran pursuant to 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). In Stegall, 11 Vet. App. at 271, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders, and imposes upon the Secretary a concomitant duty to ensure compliance with the terms of the remand. Id. at 271. The Court has indicated, additionally, that if the Board proceeds with the final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Here, for the foregoing reasons, the Board finds that there has not yet been substantial compliance with its prior remand instructions and that another remand is therefore warranted. Id. Specifically, on remand, the Board again directs the RO/AMC to obtain copies of any available reports or other documentation pertaining to the March 2006 and April 2007 VA examiners' use of Maryland CNC testing, to specifically include the numbers of words tested and recognized in the course of such testing. The Board further requests the RO/AMC to fully document all efforts made to obtain the above information, including follow-up requests, as needed, and, if such requests prove futile, to issue a formal finding of unavailability and provide the requisite notification to the Veteran pursuant to 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Togus, Maine, VA Medical Center and make arrangements to obtain copies of any available reports and/or documents showing the number of words tested and the number of words the Veteran recognized on the Maryland CNC testing conducted at his March 2006, April 2007 and December 2010 VA examinations. Thereafter, attempts should be made to give the Veteran a copy of the actual Maryland CNC Tests dated in March 2006, April 2007 and December 2010 which would consist of the above information. All reasonable attempts to obtain such records should be made and documented in the claims file. A VA Audiologist should be contacted and asked to address whether there is normally a record of the words used in the Maryland CNC test and whether there is a recording of the words that were correctly identified and the words that were not correctly identified. The Veteran should be given a copy of the VA audiologist's response. If such records cannot be obtained after reasonable efforts have been made, the RO/AMC should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. That formal finding of unavailability should be documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). If any additional records are obtained as a result of this development, the Veteran should be provided with copies of such records. 2. Finally, the Veteran's claim should be readjudicated. If any aspect of 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 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). _________________________________________________ K. OSBORNE 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).