Citation Nr: 1326306	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  12-05 184	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial compensable disability evaluation for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel


INTRODUCTION

The Veteran had active service from April 1952 to April 1956.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, granting service connection for bilateral hearing loss and assigning a noncompensable (0 percent) disability evaluation.  

The Veteran testified at a video conference hearing before the undersigned in June 2013.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.  

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

The record reflects that the Veteran was last afforded a VA audiometric examination in December 2011.  Pure tone thresholds, in decibels (dB), were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
60
70
LEFT
15
20
25
65
75

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear.  Maryland CNC testing was used. 

Since this examination, the Veteran has also undergone two private audiometric evaluations.  Most recently, a May 2013 evaluation revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
65
70
LEFT
10
15
20
60
70

The above audiometric findings are very similar to those found upon examination in December 2011.  Nonetheless, speech audiometry revealed speech recognition ability of only 88 percent in the right ear and of 88 percent in the left ear - suggesting a possible deterioration in the Veteran's speech recognition ability.  

Regrettably, the May 2010 and May 2013 private evaluations are not sufficient to permit appellate review.  Speech recognition scores must be determined by the use of the Maryland CNC Test.  38 CFR § 3.385 (2012).  The private evaluations do not reflect what type of testing was used.  The Veteran reported during his June 2013 hearing that he would contact his private audiologist to determine what type of testing was used.  However, VA has not received any additional information from the Veteran at this time.  

The Board finds that the Veteran should be scheduled for a VA audiometric evaluation.  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  While it is unclear whether there has been a deterioration in the Veteran's hearing since the December 2011 examination, if the May 2013 audiologist did in fact use the Maryland CNC Test, then it would appear that there has been a material change.  As such, to provide the Veteran with a chance to develop evidence in support of his claim, he should be provided the opportunity to appear for a more recent examination.  

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.  The Veteran should be scheduled for a VA examination with an audiologist to determine the current level of disability due to his service-connected bilateral hearing loss.  The claims folder and a copy of this remand must be provided to the examiner for review.  Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing must be performed as part of this examination.  The examiner should also discuss the overall functional impact of the Veteran's hearing loss, to include any impact on his occupation.  

The VA examiner should also determine whether the May 2010 and May 2013 private audiograms conducted by Dr. A.M. reflect speech recognition scores based on the Maryland CNC word list.  If the Maryland CNC test was utilized, the VA examiner should explain the reason for the discrepancy between the scores obtained on private examination in May 2010 and May 2013 and the score obtained on VA examination in December 2011 (and on the current VA examination if this continues to be the case).  If the VA examiner is unable to determine whether the private audiograms utilized the Maryland CNC test then the examiner should specifically provide a supporting rationale for why this is so.

2.  The RO/AMC should then review the claims file and all additional development to ensure that the mandates of this remand have been satisfied.  

3.  After completion of the above, the claim should be reviewed in light of any new evidence.  If the claim is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate 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).



_________________________________________________
TANYA A. SMITH
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).