Citation Nr: 1603503 Decision Date: 02/02/16 Archive Date: 04/01/16 DOCKET NO. 11-05 401A DATE FEB 02 2016 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: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Feinberg, Senior Counsel INTRODUCTION The Veteran had active service from April 1964 to April 1967. In July 2013, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. This matter was previously before the Board and denied in October 2014. The Veteran appealed to the Veterans Claims Court. In August 2015, the Court Clerk granted a Joint Motion for Remand (JMR). The issue is now again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In December2015, the Veteran submitted a private medical record of an August 2015 audiological evaluation. The results of the speech discrimination testing suggest that his hearing acuity may have worsened since he was last examined by VA in June 2014. As such, a new examination is needed. Furthermore, while the private audiological evaluation contained results of a speech audiometry test, it is unclear whether the Maryland CNC Word Test was used. As such, it is not adequate to evaluate the Veteran's hearing loss pursuant to the regulatory criteria. 38 C.F.R. § 4.85. Therefore, on remand, the RO should contact the provider that conducted the test and clarify whether the Maryland CNC Word Test was used. These two inquiries are the basis of the remand. The Board feels compelled to address two additional concerns raised in the record. First, the JMR found that the Board failed to explain why the duty to assist was met with regard to the Veteran's report that he underwent an audiological evaluation at a VA facility in Newark, New Jersey, in the late 1960s or early 1970s, since that record was not a part of the claims file, and there was no attempt to obtain it. Given that this is an increased rating claim and not a service connection claim, the results of an evaluation dated four to five decades ago when service-connection has already been established is irrelevant to the issue of his current level of disability. Therefore, the Board will not direct the RO to attempt to obtain this record. Second, in recent communication, the Veteran contends that the Board erred in not relying on two private reports of audiological tests that were performed in June 2010 (with a written statement provided by his physician in July 2010) and February 2013. He argues that the Board had a duty to contact these private providers to determine (1) whether the Maryland CNC Word Test was used in the June 2010 evaluation; and (2) whether the person that conducted the February 2013 test was a state-licensed audiologist. However, the Board finds that is unnecessary and will not direct the RO to undertake that development. Specifically, with regard to the June 2010 audiological test, even if the evaluator used the Maryland CNC Word Test, the results of both the acuity and word tests correspond to a noncompensable rating. As such, on its face, this evidence does not support a higher rating and there is basis to develop evidence that weighs against the claim. With regard to the February 2013 audiological test, it contains no speech discrimination or word test results. In addition, the Veteran's hearing impairment is not shown to have an exceptional pattern, and no examiner has certified that the use of the speech discrimination test was not appropriate. Therefore, it cannot be an adequate examination for rating purposes, and there is no reason to contact the provider to determine whether a state-licensed audiologist conducted the test. Therefore, the directed development will be confined to that listed below. Accordingly, the case is REMANDED for the following actions: 1. Contact the audiologist that conducted the August 20, 2015, audiological evaluation and ask whether the Maryland CNC Word Test was used to evaluate speech discrimination. 2. Schedule the Veteran for an examination to evaluate the current severity of his bilateral hearing loss. 3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate time for response. 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 2014). L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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)(2015).