Citation Nr: 1416751 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 11-25 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran had active service from February 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal, a review of which does not reveal anything pertinent to the present appeal, except for a transcript of the June 2013 videoconference. Prior to the videoconference the Veteran and his representative submitted a copy of a private May 2013 audiology evaluation, together with a waiver of initial RO consideration of that evidence. 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 At the videoconference the Veteran testified that his hearing acuity had diminished since his most recent VA audiology evaluation in May 2011. Page 6 of the transcript of that hearing. Also, the report of the May 2013 private audiology evaluation suggested that the Veteran might benefit by the use of binaural amplification (hearing aids). Also, that report does not reflect whether the Maryland CNC wordlist was used in determining the Veteran's speech discrimination ability. In this regard, the Veteran testified that he had not been treated by VA for his hearing loss but had only undergone past VA audiology evaluations. However, should he wish to obtain hearing aids, he is advised to contact a VA audiology clinic for that purpose. At the videoconference the Veteran wished to contest the use of the Maryland CNC wordlist in evaluating the severity of his hearing loss. Pages 6 and 7. However, it was explained that the use of the Maryland CNC wordlist was mandated by regulation. Pages 8 and 9. He agreed to further evaluation of his hearing loss but requested an independent source be used for that purpose. However, since his objection to past VA evaluations appears to be based upon the use of the Maryland CNC wordlist, which is mandated by regulation, the Board finds no reason to accommodate this request. Also, at the hearing it was not made clear whether there were any other outstanding records in the custody of the private audiologist that conducted the May 2013 audiology evaluation. As to whether all such records were submitted the service representative replied "... we just have the one that has just recently been taken." Page 11. Thus, since any additional private clinical records pertaining to the Veteran's hearing loss may be relevant, the appropriate steps should be taken to ensure that all such records are on file. Also, in light of the testimony that his hearing acuity had diminished since the last VA audiology evaluation and the report of the private audiology evaluation in May 2013 does not make it clear whether the results were based upon the use of the Maryland CNC wordlist, which is mandated by regulation, the Veteran should be furnished an up-to-date VA audiology evaluation for rating purposes. Accordingly, the case is REMANDED for the following action: 1. The Veteran and his representative should be contacted and requested to clarify whether it is believed that any additional the private records may be in the custody of the private audiologist that conducted the May 2013 private audiology evaluation. If either responds in the positive, the Veteran should be requested to execute and return to VA the required releases together with complete and up-to-date information as to the current and full address of the custodians of such records so that an attempt may be made to obtain them. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Arrange for a VA audiology examination to assess the current severity of the Veteran's service-connected bilateral hearing loss. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claim file should be made available to the examiner. Additionally, the examiner should specifically comment on how and to what extent the Veteran's hearing loss impairs him socially and occupationally. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claim file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claim file demonstrating any notice that was sent was returned as undeliverable. 4. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record. If the benefit sought remains denied, furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 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. 2013). _________________________________________________ L. M. BARNARD Acting 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) (2013).