Citation Nr: 1325129 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-42 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating prior to June 12, 2013, and 10 percent thereafter for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2013 rating decision, the RO increased the Veteran's service-connected bilateral hearing loss evaluation to 10 percent disabling, effective June 12, 2013. The Veteran wants an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating, unless he expressly indicates otherwise). In his October 2009 substantive appeal (on VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge of the Board. In response, the RO sent him a letter in January 2013 informing him that his hearing had been scheduled for February 11, 2013. He failed to report for the hearing, however, so was a no show. He also did not provide any reason or explanation for his absence, so did not show the required good cause for failing to appear, and did not request to reschedule his hearing. The Board, therefore, deems his hearing request withdrawn. 38 C.F.R. §§ 20.700(e) and 20.704(d) (2012). The issue of entitlement to an effective date earlier than June 12, 2013 for the assignment of a 10 percent rating for bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the July 2013 Written Brief Presentation. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim. In the April 2013 remand, the Board observed that the Veteran had submitted two private audiological treatment records: one from Gilliom Audiology dated November 2009, and one from Orange Park Medical Center dated December 2010. In both reports, the private practitioners assigned speech recognition thresholds. However, it was not clear from the reports whether the Maryland CNC word list was used in these examinations. The Board noted that pursuant to 38 C.F.R. § 4.85(a) an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. In addition, the Board recognized that the November 2009 and December 2010 private audiological examination reports depicted puretone test results in the form of a graph. The Board is the finder of fact and may interpret the evidence presented when the provided graphical representation is sufficiently clear to permit the proper interpretation. In this case, however, the Board observed that it was unclear whether these audiology results indicated a compensable worsening of the Veteran's bilateral hearing loss, and as such, the Board determined that it could not sufficiently correlate this data with the applicable rating criteria. Thus the graph was not sufficiently clear to permit a proper interpretation. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995); see also Savage v. Shinseki, 24 Vet. App. 259 (2011). In Savage v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, "in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports or progress notes, or the Board must explain why such clarification is not necessary." Savage, 24 Vet. App. at 260. The Court specifically named unclear application of the Maryland CNC test as a circumstance warranting remand. Id. at 270. As such, the Board found that further clarification was needed as to these private audiological reports. In the April 2013 remand, the Board requested that a VA examiner interpret the private audiograms dated November 2009 and December 2010 in relation to the results of the his or evaluation of the Veteran's hearing acuity and the applicable rating criteria. See the April 2013 Board remand. The record shows that the Veteran underwent another VA audiological examination in June 2013 pursuant to a remand directive. According to the June 2013 VA examination report, the VA examiner concluded that results taken from the June 2013 VA examination were consistent with the results obtained from private audiology practitioners in November 2009 and December 2010. While the Board acknowledges the June 2013 VA examiner's conclusion, it is inadequate as the VA examiner failed to provide the numeric results of the audiometric testing at the 1000, 2000, 3000, and 4000 Hertz levels and whether the Maryland CNC test was used during testing. As explained in the April 2013 remand, this information is necessary in order to properly evaluate the Veteran's claim. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). As the Board's April 2012 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 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 private audiological treatment provider, Gilliom Audiology in Jacksonville, Florida, to determine (i) if the Maryland CNC word list was used during audiological testing completed on the Veteran in November 2009; (ii) the numeral decibel levels in all frequencies; and (iii) if this evaluation was performed by a state-licensed audiologist. 2. Contact the Orange Park Medical Center Outpatient Rehabilitative Services in Orange Park, Florida, to determine (i) if the Maryland CNC word list was used during audiological testing completed on the Veteran in December 2010; (ii) the numeral decibel levels in all frequencies; and (iii) if this evaluation was performed by a state-licensed audiologist. 3. After completion of the above development, return the June 2013 VA examination report along with the claims file and a copy of this remand to the examiner for an addendum. The VA examiner should assess the numeral decibel levels in all frequencies on the November 2009 and December 2010 private audiograms (i.e., convert the graphical representations into numerical decibel levels). If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above request. 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). _________________________________________________ KELLI A. KORDICH Acting 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).