Citation Nr: 1332888	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-50 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas



THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss prior to March 14, 2013.

2.  Entitlement to an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service from January 1966 to January 1978 in the United States Air Force.   

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In July 2013, the Veteran presented testimony at a travel board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the Veteran's Virtual VA file.  

The issue of entitlement to an increased rating for bilateral hearing loss prior to March 14, 2013, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

At the July 17, 2013, hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that the appeal was being withdrawn as to the issue of an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013. 


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met for the issue of an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).  



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204(c).  

In the present case, at the July 17, 2013, hearing, the Veteran withdrew the appeal for an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013.  The Veteran and his representative emphasized that he was still seeking an increased rating for bilateral hearing loss prior to March 14, 2013.  

Hence, with regard to the issue of an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013, there remain no allegations of errors of fact or law for appellate consideration for this particular issue.  Accordingly, the Board does not have jurisdiction to review that part of the appeal and it is dismissed.





ORDER

The appeal for an increased rating greater than 20 percent for bilateral hearing loss on or after March 14, 2013, is dismissed.



REMAND

Before addressing the merits of the remaining issue of entitlement to a compensable rating for bilateral hearing loss prior to March 14, 2013, the Board finds that additional development of the evidence is required.  

First, the Veteran has stated that he received annual audiology examinations to test his hearing from 1978 to 2007.  It is unclear whether these hearing examinations were conducted by VA, a private provider, or his employer.  See July 2013 hearing testimony at pages 3-4.  In addition, January 2008 VA treatment records reveal that the Veteran was referred to private audiology testing at Sawyer Audiology.  In May 2008, after audiology testing was performed at Sawyer Audiology, the Veteran was provided with hearing aids.  He was seen again for private audiology testing in December 2008.  The Veteran has testified that, after getting his hearing aids in 2008, he has been "dealing with the VA annually or semiannually to get parts for it to keep it working."  See July 2013 hearing testimony at page 3.  Again, it is unclear from the record whether this annual or semiannual testing for his hearing aids was performed by the VA or referred to Sawyer Audiology.  In any event, these records are not present in the claims folder.  

VA's duty to assist includes obtaining records of relevant VA medical treatment.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).  Moreover, VA is required to make reasonable efforts to obtain all "relevant" records, including private records or employer records like these, which the Veteran adequately identifies and authorizes VA to obtain.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.  38 C.F.R. § 3.159(c)(1).  However, a claimant is required to cooperate fully with VA's efforts and provide adequate information to authorize the release of existing records in an acceptable form.  38 C.F.R. § 3.159(c)(1).  Therefore, the RO/AMC should contact the Veteran and ask that he provide specific details as to when and where he was treated for his hearing loss.  

Second, a remand is required for clarification of a December 2008 private audiology report.  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. 2013); 38 C.F.R. § 3.159(c) (2013).  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 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). 

It is unclear whether the speech discrimination testing for the December 2008 private audiogram 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).  Therefore, on remand, further clarification from the private provider or from a VA audiologist should be undertaken on whether the December 2008 private audiogram contained speech discrimination testing utilizing the Maryland CNC test.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should contact the Veteran and ask that he adequately identify the full names of the providers who treated him, the specific dates of treatment, and any address or telephone information for the following:  

(a) Annual audiology examinations to test his hearing from 1978 to 2007.  It is unclear from the Veteran's testimony whether these hearing examinations were conducted by the VA, a private provider, or his employer.  

(b) Annual or semiannual testing for his hearing aids from 2008 to 2013.  It is unclear from the Veteran's testimony whether this testing was performed by the VA or referred to Sawyer Audiology, a private provider.    

The Veteran is also asked to provide the records himself if he has them in his possession.  If any of these records are VA records, they should be secured.  If any of these records are private or employer-based, the Veteran should complete and return the necessary authorization (VA Form 21-4142) for VA to obtain them, and the VA should document such efforts in the claims folder.  If no records are available, it should be so noted in the claims folder.

2.  The RO/AMC should contact the private audiologist who conducted the December 2008 private audiogram, or in the alternative a VA audiologist, in order to clarify whether the speech discrimination testing was conducted using the Maryland CNC test.  All attempts to seek clarification, and any response received, must be documented in the claims file.

3.  The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  

4.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

5.  When the development requested has been completed, the issue of entitlement to an increased rating for bilateral hearing loss prior to March 14, 2013, should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and any representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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 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. 2013).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs