Citation Nr: 18142200 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 10-46 034 DATE: October 15, 2018 REMANDED Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. REASONS FOR REMAND Entitlement to an increased rating for a bilateral hearing loss disability is remanded. In a May 2017 decision, the Board denied an initial compensable disability rating for a bilateral hearing loss disability. In an April 2018 Joint Motion for Remand, the parties agreed that the Board erred in its denial of a compensable rating for a bilateral hearing loss disability without first obtaining a new examination after receiving of the Veteran’s March 2017 statement where he claimed worsening symptoms of hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In reviewing the evidence of record, the Board notes that there is a November 2015 private Kaiser Permanente audiological evaluation. In order for an audiology report to be used to rate a hearing loss disability, VA regulation requires that the examination be performed by a state licensed audiologist and that the report contain the results of a controlled Maryland CNC speech discrimination test. See 38 C.F.R. § 4.85 (2017). Although speech discrimination testing was performed at this evaluation, it is unclear whether the Maryland CNC speech discrimination test was used and it is also unclear whether the examination was performed by a state licensed audiologist. There are some instances where VA is required to seek further information from a non-VA medical professional who has provided an examination report, either directly or through the claimant who provided the private examination report. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011). Such instances are limited to when the missing information is relevant, factual, and objective, and where the missing evidence bears greatly on the probative value of the examination report. Id. Whether speech discrimination tests were conducted using the Maryland CNC Test and whether audiometric evaluations were conducted by a state licensed audiologist are both relevant because VA will not consider an audiometric examination in evaluating a person’s hearing loss disability if these two criteria are not met. See 38 C.F.R. § 4.85. Therefore, the Board finds this missing information bears greatly on the probative value of the private examination reports and that VA is required to seek further information from Kaiser Permanente in support of the Veteran’s claim. Savage, 24 Vet. App. at 270. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) must take the appropriate steps to obtain any outstanding audiometric reports and to clarify whether the Maryland CNC Test was used at the private audiometric examinations and whether the examinations were performed by a state licensed audiologist. While this case is in remand status, all outstanding VA treatment records must also be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record. 2. Contact the Veteran and request that he complete and return a signed authorization to allow the AOJ to attempt to obtain identified private medical records on his behalf, to specifically include records from Kaiser Permanente. If the Veteran submits any authorization that is insufficient for further action, he should be notified, and any such notification should be properly documented in the claims file. 3. Upon receipt of any valid medical authorization, the AOJ must attempt to obtain any identified private records in accordance with VA regulation. See 38 C.F.R. § 3.159. VA must also contact Kaiser Permanente to determine whether any audiological evaluations performed, to include the November 2015 evaluation, were conducted by a state licensed audiologist and whether the evaluations included the results of the controlled Maryland CNC speech discrimination test. 4. The Veteran must be afforded the appropriate VA examination to determine the current severity of his hearing loss disability. All required audiometric testing must be performed. The examiner must elicit from the Veteran and document in the examination report all functional impairment caused by the Veteran’s hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 5. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 6. Then, the Veteran’s claim must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel