Citation Nr: 1328100 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-32 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1943 to March 1945. 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 St. Paul, Minnesota. In June 2013, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. 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 Reason for Remand: To obtain clarification of an audiometric record. The Veteran has appealed the denial of a higher rating for his bilateral hearing loss disability, which is currently evaluated as 20 percent disabling. There are specific criteria for rating a bilateral hearing loss disability. Those criteria provide that an examination for hearing impairment "must include a controlled speech discrimination tests (Maryland CNC)." 38 C.F.R. § 4.85(a) (2012). The Veteran was examined by VA in July 2013, and audiometric testing to include speech discrimination scores was documented. The record also shows that in April 2013, an audiogram report was submitted to VA by the Veteran in support of the Veteran's claim. The report is dated in April 2013 and it indicates that audiometric testing was conducted on March 19, 2013. It is noted on the report in the comments section that the audiogram was conducted at the VA medical center audiology clinic in Minneapolis, Minnesota. The Board has reviewed the file, including the records in Virtual VA, and it does not contain a copy of this report. Additionally it does not appear that the report is in any way part of the VA examination conducted in July 2013. There is a notation on the VA Form 21-4138 submitted with this report that there were copies of this report in the "temporary file". The March 2013 audiological examination does not indicate whether the Maryland CNC word list was used. The United States Court of Appeals for Veterans Claims (the Court) has given specific guidance to VA in this situation. If it is not clear from the examination report whether the Maryland CNC word list was used, the answer to this question cannot otherwise be determined, and the report is relevant to the disposition of the claim, the report must be returned for clarification. Savage v. Shinseki, 24 Vet. App. 259 (2011) (citing 38 C.F.R. §§ 4.2, 19.9(a)). Consequently, a remand is required to determine whether the audiologist who conducted the March 2013 audio examination used the Maryland CNC word list to obtain the speech recognition scores. In addition, the audiometric test scores on the March 2013 examination appear in graph format only. In Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court held that it was unable to interpret the results of such a graph, because this would constitute a factual finding it is precluded from making. The Court criticized the Board in that case for not discussing the speech recognition results in that report. Id. Given that the claim is being remanded for clarification with regard to the speech recognition scores, clarification should also be requested with regard to the audiometric scores, specifically, that numerical values for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz , as well as the average of these scores, be provided. Also, the July 2013 supplemental statement of the case did not discuss the March 2013 examination report. It appears that a temporary file has been established in connection with this claim, but such has not now been integrated into the permanent claims file. It seems that there are significant pertinent documents related to the Veteran's current claim on appeal located in the temporary file. As the record is potentially incomplete, the Board cannot adjudicate the claim without risk of prejudicing the Veteran. On remand, any temporary file held by the RO or AMC must be associated with the claims file. 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. Associate with the current claims file any temporary file maintained by the AMC or RO. 2. Then, as necessary, after reviewing the temporary file, request clarification from the Veteran regarding the March 2013 examination which, as was noted on the report, was conducted at a VA facility. In this regard, contact the Veteran for complete information regarding the examination. Then, if necessary, contact the audiologist to ask whether the speech recognition scores were determined using the Maryland CNC list or another list. Also, request that numerical values be provided for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz, as well as the average of these scores for the above examination. 3. After the development is completed above, the RO should issue a supplemental statement of the case which includes discussion of all pertinent evidence including the March 2013 examination and includes consideration of any clarification evidence submitted. The Veteran must be given an opportunity to respond before the case is returned to the Board. 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).