Citation Nr: 1320729 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-46 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from January 1957 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. 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 Reasons for Remand: To clarify private medical records and to obtain an adequate VA examination. There are several private audiological examination reports in the file submitted by the Veteran. The reports are dated in February 2009, April 2010, May 2010, March 2011, and April 2012, and are from various examiners. These reports are inadequate for rating purposes, as they do not indicate whether the Maryland CNC speech discrimination test was used and include audiometric findings that are reported in graph form only. VA's duty to assist also includes undertaking reasonable efforts to obtain clarification of unclear evidence, which applies to medical examination reports of all kinds. 38 C.F.R. § 19.9 (2012). On remand, the RO/AMC should notify the Veteran and the examiners that the examination reports provided are insufficient and request clarification. If no response is received, either from the private examiners or the Veteran, VA may continue with adjudication, weighing the accumulated evidence of record as usual. See Savage v. Shinseki, 24 Vet. App. 259 (2011). The Veteran was most recently examined by VA in February 2010 and again in June 2010. On both examinations, the audiologist found that the testing was unreliable and that therefore no statement regarding the Veteran's hearing could be made. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further as was pointed out by the Veteran's representative in his April 2014 presentation, the most recent adequate VA examination report in the file is dated in 2008. A December 2009 VA treatment report notes that the Veteran's speech recognition had decreased since his previous audio. The evidence suggests that the Veteran's bilateral hearing loss disability has increased in severity since the 2009 VA examination, and as a current VA examination with reliable results has not been obtained, another examination is necessary in order to determine the current severity of such disability prior to adjudication of this claim. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact the private examiners who have conducted examinations of the Veteran for his hearing loss in February 2009, April 2010, May 2010, March 2011, and April 2012 as indicated in the file. Request that they identify which speech discrimination test was utilized during the examinations, as well as to provide the puretone threshold findings in numerical form. If the examiners are unavailable or do not respond, the RO/AMC should make a notation of this fact in the record. 3. Notify the Veteran that the February 2009, April 2010, May 2010, March 2011, and April 2012 examinations are inadequate and that the RO/AMC is contacting the providers for additional information. If, after allowing an adequate time for response, no response is received from the providers, notify the Veteran that the RO/AMC may continue to adjudicate the claim, weighing the accumulated evidence of record as usual. 4. Upon completion of the above development, afford the Veteran an appropriate VA examination in order to determine the current nature and severity of his service-connected bilateral hearing loss disability. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. All indicated evaluations, studies, and tests deemed to be necessary must be accomplished. The examiner must fully describe the functional effects caused by the Veteran's bilateral hearing loss disability. The examiner must also offer an opinion as to the effect, if any, of the Veteran's bilateral hearing loss on his employability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The Veteran must be properly informed of his scheduled VA examination, and he should be given notice of the consequences of failure to report for the examination, including an explanation of the provisions of 38 C.F.R. § 3.655. If the Veteran does not report for the examination, the claims folder should include clear documentation of his failure to report. 6. The RO should review the claims folder 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. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 7. When the development requested has been completed, readjudicate the claim on appeal. If any benefit sought is not granted to the fullest extent, the Veteran and his representative must 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 review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).