Citation Nr: 1603985 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 09-37 378A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a higher initial rating for bilateral hearing loss, rated noncompensable prior to April 23, 2015 and 20 percent disabling since that date. ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1968. He received the Air Medal and Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective from August 1, 2005. In April 2015, the RO assigned an initial 20 percent disability rating for bilateral hearing loss, effective from April 23, 2015. The Veteran was scheduled for a Board hearing before a Veterans Law Judge in Washington, DC in January 2016. He withdrew his hearing request in December 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Letters from N. Dash, M.D. at Ear, Nose & Throat & Facial Plastic Surgery Center of Fredericksburg, PC dated in March 2006 and March 2009 indicate that the Veteran has undergone audiometric testing at that facility. While summaries of such testing have been provided, there are no treatment records from this facility in the file and the full results of the audiometric testing (including all pure tone thresholds and the results of any speech discrimination testing) have not been obtained. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with respect to all relevant treatment records from Dr. Dash/Ear, Nose & Throat & Facial Plastic Surgery Center of Fredericksburg, PC. Thus, a remand is necessary to attempt to obtain any additional relevant private treatment records. Additionally, the Veteran submitted audiology examination reports from the U.S. Naval Research Laboratory and Walter Reed National Military Medical Center (Walter Reed) dated in March 2008, September 2009, and January 2013. Although a speech recognition threshold appears to be provided for the right ear with regard to the January 2013 examination, it is unclear whether it was obtained using the Maryland CNC test as required by 38 C.F.R. § 4.85 (2015). Also, it is unclear whether any speech recognition testing was conducted during the March 2008 and September 2009 examinations. Hence, a remand is also necessary to seek clarification from the U.S. Naval Research Laboratory and Walter Reed as to the results of any speech recognition testing and what standard was used to complete any such testing. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) (clarification from a private medical examiner must be sought when an examination report is unclear or insufficient and the missing information is relevant, factual, and objective). Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Naval Research Laboratory, Walter Reed, and any other appropriate source and request the results of any speech recognition testing (including any such testing conducted during the March 2008, September 2009, and January 2013 examinations and any additional examinations) and ask for clarification as to whether any such data was obtained using the Maryland CNC test or another standard. Ask the Veteran for any necessary assistance in obtaining this clarification. Efforts should continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Ask the Veteran to identify the name and location of any VA or private medical facility where he has received treatment for hearing loss, to include the dates of any such treatment. Ask the Veteran to authorize VA to obtain all records of his treatment for hearing loss from Dr. Dash/Ear, Nose & Throat & Facial Plastic Surgery Center of Fredericksburg, PC (see the March 2006 and March 2009 letters from Dr. Dash) and from any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any such relevant records for which a sufficient release is submitted. With the Veteran's authorization, ask Dr. Dash/Ear, Nose & Throat & Facial Plastic Surgery Center of Fredericksburg, PC to provide the results of any speech recognition testing and to clarify whether any such data was obtained using the Maryland CNC test or another standard. Ask the Veteran for any necessary assistance in obtaining this clarification. All efforts to obtain these records must be documented in the file. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. 3. If any identified records are unavailable, the Veteran should be notified of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 4. If the any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case shall to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).