Citation Nr: 1806165 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-17 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Appeals Management Office in Waco, Texas. THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. (The issues of entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure; and entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer, were the subject of a hearing before another Veterans Law Judge (VLJ) and will be decided by that VLJ in a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the Air Force from February 1962 to November 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Appeals Management Office (AMO) in Washington, DC. Jurisdiction of the Veteran's claims file currently resides with the Regional Office in Waco, Texas. In February 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. In May 2012, the Board remanded the case for the RO to provide the Veteran with a statement of the case in response to his notice of disagreement with the December 2010 rating decision. The RO furnished a statement of the case in May 2012, and the Veteran perfected an appeal. In September 2013, the Board remanded to provide the Veteran a hearing. In May 2016, the Veteran's attorney asked on his behalf to withdraw his request for a hearing. In September 2016, the Board remanded again to provide the Veteran a hearing, since his attorney did not represent him with regard to his hearing loss claim, but only with regard to two other claims, and so could not request that the hearing on the Veteran's hearing loss claim be canceled. As noted above, the Veteran testified at a hearing in February 2017. Thus, there has been substantial compliance with the Board's prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has been afforded two VA examinations and has undergone five private audiological examinations during the claim period. However, only one of the private examinations indicated that it used the Maryland CNC controlled speech discrimination test, rendering the examination adequate for VA purposes. Of the other four private examinations, one used a test other than the Maryland CNC, and is therefore inadequate for VA purposes. The other three recorded scores that would support a compensable rating if they resulted from the Maryland CNC test, but gave no indication which test was actually employed. Of the two VA examinations, a May 2014 examination contains results adequate for VA purposes, but an April 2017 examination is unclear. In fact, the Veteran's claims file currently includes two very similar VA medical records both dated April 18, 2017. The first is an excerpt from VAMC progress notes, which records the results of audiological testing, and specifies that the controlled speech discrimination test employed was the Maryland CNC, as required by 38 C.F.R. § 4.85. The second is a VA examination with results identical to those recorded in the VAMC progress notes, except that the VA examination indicates the controlled speech discrimination test employed was the NU-6. Both the VAMC record and the VA examination reflect a score of 80 percent for both ears, and both bear the name of the same VA audiologist. Therefore, given that the records bear the same date and examiner's name, and reflect precisely the same scores, it seems likely that they in fact represent two records of one and the same examination. However, because the records disagree as to which controlled speech discrimination test was employed, the Board is unable to determine whether that examination was adequate for VA purposes. Because the Board cannot determine whether the three ambiguous private examinations and the second VA examination are adequate for VA purposes, a remand is necessary to clarify these records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the audiologist who performed the July 7, 2011 examination (associated with the Veteran's claims file August 3, 2011), as well as the audiologist who performed the June 12, 2012 and October 20, 2015 examinations (associated with the claims file June 28, 2012 and November 13, 2015, respectively) and inquire as to whether or not these examinations employed the Maryland CNC controlled speech discrimination test. The Veteran need not present himself to the audiologists for an examination. The claims file may be provided to the audiologists if necessary to refresh their recollection, or if requested. 2. Return the Veteran's claims file to the VA examiner who conducted the April 2017 examination for clarification. The examiner should produce an opinion as to the following: a) Whether the April 18, 2017 VAMC record and the April 18, 2017 VA examination in fact reflect one and the same examination; b) If so, which controlled speech discrimination test was employed: the Maryland CNC, the NU-6, or any other test; c) If the April 18, 2017 VAMC record and the April 18, 2017 VA examination were different examinations, the examiner should enumerate in as much detail as possible what medical evaluations or examinations these records reflect, as well as the nature, circumstances, and purpose of such evaluations, and their relation to each other, if any. In particular, the examiner should clarify which controlled speech discrimination test was used in said evaluations. 3. After completing the above actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).