Citation Nr: 1328698 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-28 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable initial disability rating for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1953 through April 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A timely Notice of Disagreement (NOD) was received from the Veteran in April 2012. After a Statement of the Case (SOC) was mailed to the Veteran in September 2012, the Veteran perfected his appeal in October 2012, via VA Form 9 substantive 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 Audiometric testing performed during a June 2011 VA examination revealed elevated pure tones and diminished speech recognition ability in each ear. The corresponding report does not note any subjectively reported functional loss. Nonetheless, the examiner opined that although the Veteran's hearing loss did not affect his activities of daily living, it did have a "significant effect" upon his ability to perform his occupation. No discussion or explanation was provided as to how the Veteran's hearing loss affected his occupational functioning. Repeated audiometric testing performed during a December 2012 VA examination, which was performed by a different VA examiner, revealed ongoing elevated pure tones and diminished speech recognition. During the examination, the Veteran complained that he had difficulty hearing his spouse and hearing things from a distance without his hearing aids. Despite these complaints, the VA examiner opined that the Veteran's hearing loss did not impact his ordinary conditions of life. Contrary to the June 2011 VA examiner's opinion, the December 2012 VA examination also concluded that the Veteran's hearing loss did not impact his ability to work. Again, the examiner did not provide any discussion or explanation for her findings regarding functional impact, nor did she provide any reasoning for her contrary opinion regarding impact on the Veteran's occupational functioning. The United States Court of Appeals for Veterans Claims (Court) has held that "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In the absence of any rationale or discussion in support of the ultimate conclusions as to the impact of the Veteran's hearing loss on his daily and occupational functioning, both the June 2011 and December 2012 VA examinations insufficiently describe the functional effects resulting from the Veteran's hearing loss. Also, as argued by the Veteran's representative in his July 2013 brief, speech discrimination test results reported in the evidence appears to vary widely over a relatively short span of time. In that regard, Maryland CNC testing performed during an October 2010 private audiometric evaluation revealed speech discrimination ability of 76 percent in the right ear and 80 percent in the left ear. By contrast, the June 2011 VA examination revealed speech discrimination ability of 92 percent in the right ear and 84 percent in the left ear. An April 2012 private evaluation revealed speech discrimination ability of 92 percent in the right ear and 88 percent in the left ear. July 2012 testing performed at the VA Medical Center indicated 88 percent speech recognition in the right ear and 80 percent in the left ear. Finally, demonstrated speech recognition ability during the December 2012 VA examination was 96 percent in the right ear and 84 percent in the left ear. Despite the wide range in speech recognition ability from test to test over the brief two year period noted above, neither the June 2011 nor the December 2012 VA examiner comment upon or explain this discrepancy in speech recognition scores. Accordingly, the Veteran should be arranged to undergo a new VA audiological examination to examine the current severity of the Veteran's hearing loss and any resulting functional loss. 38 C.F.R. § 3.159(c)(4); Martinak, 21 Vet. App. 447. Prior to obtaining the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other treatment providers who have rendered treatment for his hearing loss since July 2012. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. 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. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for a compensable initial disability rating for bilateral hearing loss. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his hearing loss. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his hearing loss since July 2012. 2. Obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the RO should arrange for the Veteran to undergo a VA audiological examination, to be performed by an appropriate examiner, to determine the current severity of his hearing loss and any functional effects resulting from his hearing loss. The entire claims file must be made available to the individual designated to examine the Veteran and the designated examiner must review the entire claims file in conjunction with the examination. All necessary tests and studies, to include an interview of the Veteran, audiometric testing, and word recognition testing via the Maryland CNC test, should be performed. The examiner should comment upon the reliability and validity of all test results. The examiner should comment upon any functional effects resulting from the Veteran's hearing loss, to include any impairment of activities of daily living and occupational function. Such discussion should include citation to any relevant facts or evidence, to include the findings from the examination, impairment or functional loss reported by the Veteran, objective and subjective findings noted in the previous VA examinations and VA and private treatment records, and any applicable medical principles. Also, the examiner should comment upon and explain the wide discrepancy in speech recognition scores that is shown in the treatment records and VA examinations in the claims file. To the extent that any of the audiometric tests contained in the claims file are unreliable, the examiner should note the same and explain why it is unreliable. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of entitlement to a compensable initial disability rating for bilateral hearing loss should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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).