Citation Nr: 1330218 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-35 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from March 1959 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective from March 21, 2010. In a September 2012 rating decision, the RO determined that the Veteran was entitled to an earlier effective date because a clear and unmistakable error was made; therefore, a noncompensable evaluation for the service-connected bilateral hearing loss was granted effective from March 4, 2009. In an October 2012 VA Form 9, Appeal to the Board, the Veteran's representative acknowledged the RO's grant of an earlier effective date for bilateral hearing loss and indicated that the Veteran wanted to continue to his appeal for a compensable evaluation for bilateral hearing loss. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 Initially, the Board notes that copies of the November 2010 rating decision were printed from the Veteran's Virtual VA electronic file and associated with the paper claims file in December 2011. The rating decision references evidence not contained in the paper claims file, the Virtual VA electronic file, or the Veteran's VBMS electronic folder. On remand, the RO/AMC should determine whether there is a temporary folder and if so, its contents or copies thereof should be associated with the paper claims file and/or the Veteran's Virtual or VBMS electronic files. Of particular relevance, the November 2010 rating decision references Veterans Claims Assistance Act of 2000 (VCAA) notice letters dated in April 2010 and May 2010; a VCAA notice response dated in April 2010; and VA treatment records from the VA Medical Center (VAMC) in Wilmington, Delaware, dated from December 2005 to May 2010. Further, a September 2012 statement of the case (SOC) referenced the receipt of a notice of disagreement (NOD) from the Veteran in December 2010. Copies of the notice letters, the Veteran's response, a NOD, and the VA treatment records are not contained in the Veteran's Virtual VA or VBMS electronic files, and a review of the paper claims file shows that VA medical records were last printed in September 2012. On remand, additional VA records must be associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.) Additionally, a remand is required for clarification of February 2009 and October 2012 private audiology reports. VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). As part of this duty, if further clarification of certain evidence is essential for a proper appellate decision, the Board shall remand the case to the RO/AMC and specify the action to be undertaken. See 38 C.F.R. § 19.9(a). The U.S. Court of Appeals for Veterans Claims (Court) has held, pursuant to 38 U.S.C. § 5103A(a), that when a private examination report "reasonably appears" to contain information necessary to properly decide a claim, but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. This duty should be undertaken when the burden on VA in obtaining this missing information is minimal. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). The results of the February 2009 and October 2012 private audiograms were provided in graphic representations without interpretation as to the exact puretone thresholds found at the appropriate frequencies. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graphical form and can remand uninterpreted audiograms for interpretation). In addition, it is unclear whether the speech discrimination testing was conducted using the Maryland CNC test. See 38 C.F.R. § 4.85(a) (the controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test). It is also unclear whether puretone thresholds readings were conducted at 3,000 Hertz. Without puretone thresholds readings at 3000 Hertz, these private audiology reports would not be adequate or suitable for rating hearing loss for VA purposes. See 38 C.F.R. § 4.85(d) (the puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz, divided by 4). Therefore, further clarification from the private audiologist of these discrepancies should be undertaken on remand. Finally, in a December 2010 VA audiology note, the Veteran stated that he was recently treated by an ear, nose, and throat physician. However, with exception to the July 2010 VA audiology examination and the private audiograms discussed above, there are no other VA or non-VA treatment notes pertaining to his hearing loss. The RO/AMC should make efforts to obtain any outstanding treatment notes referable to the Veteran's hearing loss. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should determine whether there is any additional folder for the Veteran, including a temporary file. If so, the contents of this folder or copies thereof should be associated with the claims folder and/or Virtual VA or VBMS electronic files. If it is determined that an additional folder does not exist, the RO/AMC should indicate such in the paper claims file and send the Veteran and his representative complete VCAA notice regarding the issue on appeal, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. §§ 3.159, 3.310 (2012), Quartuccio v. Principi, 16 Vet. App. 183 (2002), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding pertinent medical treatment records from the ear, nose, and throat physician referenced in the December 2010 VA audiology treatment note. A specific request should also be made for any outstanding VA medical records from the VAMC in Wilmington, Delaware, dated from December 2005 to the present. 3. The RO/AMC should contact the audiologist who conducted the February 2009 and October 2012 private audiograms for purposes of clarification of the graphical audiograms. The audiologist should be asked to: (i) provide the exact numbers in decibels for the puretone thresholds for each ear at the appropriate frequencies (500, 1000, 2000, 3000, and 4000 Hertz ); (ii) clarify whether speech discrimination testing was conducted using the Maryland CNC test; and (iii) clarify whether puretone thresholds readings were conducted at the 3,000 Hertz frequency. All attempts to seek clarification and any response received must be documented in the claims file. 4. After securing any VA or private treatment records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected bilateral hearing loss. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences to his claim for an increased rating. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. This VA examination should also include a statement as the effect of the Veteran's hearing loss on his occupational functioning and daily activities. The claims file should be available to the examiner for review. He or she should also provide a complete rationale for any opinions provided. 5. The RO/AMC should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action should is to be implemented. If any report does not include adequate responses to the specific opinions or testing requested, it must be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the bilateral hearing loss issue on appeal. If the benefit sought is not granted, the RO/AMC should issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JESSICA J. WILLS 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).