Citation Nr: 1336383 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 06-34 306A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that rating decision, the RO granted entitlement to bilateral hearing loss and assigned a noncompensable rating. The Veteran perfected an appeal of the assigned rating. A review of the Veteran's Virtual VA claims folder and Veterans Benefit Management System folder reveals that they contain an August 2013 brief from the Veteran's representative, which has been reviewed by the Board. All other evidence in the electronic claims files is duplicative of that which is already contained in the paper claims file. The Veteran's appeal was previously before the Board and remanded in November 2009. 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 Unfortunately, the Board finds that another remand is necessary in this case. In November 2009, the Board remanded the Veteran's appeal for the following reasons: (1) send the Veteran a letter and ask him to provide a release relevant to any non-government medical records; (2) schedule him for a VA examination; and (3) clarify his request with regard to appearing at a Board hearing. In November 2009, VA sent the Veteran a letter that complied with the remand directives regarding private evidence. Thereafter, the Veteran provided a release so that VA could request records from G.B., a private audiologist who had evaluated the Veteran on a number of occasions. Thereafter, following an inquiry from VA, G.B. provided such records, which were associated with the Veteran's claims file in May 2010. However, since the Veteran's appeal was last at the Board, the United States Court of Appeals for Veterans Claims (Court), has held that VA is required to seek clarification of a private examination report in "those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report." Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). The Court held that this includes seeking clarification as to whether a private examiner used the Maryland CNC word list in performing speech recognition testing. The claims file contains a number of audiological evaluations from G.B., but there is no indication as to whether the Maryland CNC word test was used versus another word test. In addition, the Veteran's audiological results were reported on a chart and not transcribed by G.B. Under these circumstances, the RO must seek any necessary clarification from the appellant's private audiologist regarding the testing methods used and the results obtained during audiometric examinations referenced above. Furthermore, the Board finds that clarification as to whether the Veteran still desires to appear at a hearing before the Board needs to be sought. While the Veteran was sent a letter in May 2012, it did not make clear his options or the consequences for not responding. A Board hearing has not been scheduled. Finally, with regard to an examination, the Board notes that the Veteran was afforded such an examination in July 2011. However, that report shows that the Veteran's test results were unreliable, as had been shown on four previous VA examinations with four different VA audiologists. In light of these results, the Board finds that scheduling the Veteran for another VA examination is not necessary. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary information and authorization from the appellant, the RO/AMC should contact Granville Y. Brady, Jr., audiologist, to inquire as to what type of speech discrimination test was used during the multiple audiometric tests he performed on the Veteran between December 2001 and November 2009, to specifically include whether the Maryland CNC word list was used in conducting those studies. In addition, the audiologist should be asked to transcribe the results of the audiograms from the charts that are contained in the record. All attempts to obtain this information should be documented in the claims folder. 2. Following completion of the above development, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC), which reflects consideration of all additional evidence received. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. 3. Thereafter, following the completion of the above, to include the issuance of the SSOC cited above, the RO should clarify whether the Veteran wishes to appear in person at a Travel Board hearing before a Veterans Law Judge, whether he wishes to have his representative provide testimony on his behalf at the hearing in his absence, or wishes to withdraw his hearing request. The Veteran and his representative are to be advised that he is responsible for arranging and financing his own transportation, to include necessary escorts to his hearing. If the Veteran wishes to have a representative testify on his behalf in his absence at such hearing, he and his representative are advised that they must file a petition to the Board to allow for such testimony. The Veteran should be informed that, if he does not respond to this correspondence, his hearing request will be deemed withdrawn. 4. Thereafter, following the completion of the above, if a Travel Board hearing is requested, the RO should schedule such a hearing, with appropriate notification to the Veteran and his representative. A copy of the notice to the Veteran of the scheduling of the hearing should be placed in the record. 5. After the hearing is conducted, or if the Veteran withdraws his hearing request or fails to report for the scheduled hearing, the case should be 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). _________________________________________________ CHERYL L. MASON 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).