Citation Nr: 1332121 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-08 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Paul Bradley, Agent ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 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 provide a new VA examination. The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating. The Veteran contends that the severity of his hearing loss warrants a higher rating than that assigned. The Board finds that further evidentiary development is necessary before reaching the merits of the Veteran's claim. The Veteran's most recent VA audiological examination took place in February 2010, over three and a half years ago. Unfortunately, the Board finds the examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes to provide an examination, it must ensure that the examination is adequate). In addition, since February 2010, evidence has been received that the Veteran's hearing loss has worsened. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity). For these reasons, as explained below, the claim must be remanded for a new and more contemporaneous examination. At the February 2010 examination, the VA examiner performed a pure tone audiometry test and a speech discrimination test as required by 38 C.F.R. § 4.85. However, the examiner failed to address the impact the Veteran's hearing loss has on activities of daily living and occupational activities. In this regard, the Board notes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims 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. There was no such discussion in the February 2010 report. In addition, it is unclear whether the Veteran's claims file was available for review by the examiner. Indeed, as the Veteran pointed out in his March 2013 Form 9, the examiner did not consider lay statements submitted by the Veteran and his wife the month prior to the examination regarding the effect of hearing loss on the Veteran's daily life. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions . . ."). Based on the foregoing, another VA examination must be scheduled for the Veteran. Furthermore, the Veteran has submitted evidence that his hearing has worsened since February 2010. In a January 2011 statement, the Veteran indicated that with the hearing aids he acquired in December 2009, he could "understand and hear people speaking" much more clearly and could "hear sounds at greater distances." However, in a June 2013 statement, the Veteran stated that his hearing problems were worsening despite use of the hearing aids. In the statement, he explained that he has trouble hearing the priest at church and struggles to hold conversations, especially in groups. He often asks people to repeat themselves and is sometimes asked if his hearing aids are working. The Veteran expressed difficulty hearing people on the phone and stated that he often feels embarrassed on account of his inability to hear well. His wife also submitted a statement in June 2013 indicating that, even with his hearing aids, the Veteran has problems hearing and it affects his ability to communicate. She related that his children were upset because they feel the Veteran is ignoring them at times when he cannot properly hear them. She also related that he does not talk as much as he used to because communication is difficult on account of his hearing loss. Given that the Veteran's hearing was last examined by VA over three years ago and important elements of his disability and claims file were not adequately considered, and in light of his assertions that his condition has worsened, the Board finds that a new examination is needed before a decision can be made on the Veteran's claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Accordingly, the case is REMANDED for the following action: 1. The most recent VA medical record in the claims file is dated December 2011. The RO/AMC should obtain VA treatment records dated from December 2011 to the present and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a state-licensed audiologist to ascertain the severity and manifestations of his service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner, including the Maryland CNC test and a pure tone audiometric test, should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected bilateral hearing loss. The examiner should report all signs and symptoms necessary for rating the Veteran's bilateral hearing loss under the applicable rating criteria, 38 C.F.R. §§ 4.85 and 4.86. The examinations should be conducted without the use of hearing aids. The examiner must comment as to the impact of bilateral hearing loss on the Veteran's daily activities and his occupational functioning, even if not currently employed. The examiner should also consider all lay statements by the Veteran and his wife as to the current severity of the hearing loss disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's physical and/or Virtual VA claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _____________________________________________ 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).