Citation Nr: 18152715
Decision Date: 11/26/18	Archive Date: 11/23/18

DOCKET NO. 17-45 496
DATE:	November 26, 2018
ORDER
Entitlement to an initial rating in excess of 10 percent for tinnitus is denied.
REMANDED
Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded.
FINDING OF FACT
The 10 percent rating currently in effect for the service-connected tinnitus is the maximum schedular rating allowable for this disability.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from February 1962 to February 1966.  In his February 2017 VA Form 9, the Veteran requested a Board hearing at the RO.  He was later contacted by the RO in October 2018, at which time he withdrew his hearing request.
Entitlement to an initial rating in excess of 10 percent for tinnitus
The Veteran contends that a rating in excess of 10 percent for his tinnitus is warranted.  Significantly, however, under DC 6260, a single 10 percent disability rating is warranted for tinnitus, whether it is unilateral or bilateral, or whether it is constant versus recurrent.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Accordingly, the Veteran’s appeal for an initial rating in excess of 10 percent for tinnitus is denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS FOR REMAND
Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded.
Although further delay of this matter is regrettable, additional development is necessary to afford the Veteran every possible consideration.  The Veteran submitted audiograms from private providers, including one conducted in July 2015 from Mass. Audiology, and one completed in July 2017, from the office of Dr. C.J., Ear, Nose, & Throat Surgery, PC.  In these reports, the private practitioners assigned speech recognition percentages and thresholds.  However, it is not clear whether the Maryland CNC word list was used in this examination.  
Pursuant to 38 C.F.R. § 4.85(a) an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  When a private examination report is “unclear” or “not suitable for rating purposes” and the information “reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed.  Kelly v. Brown, 7 Vet. App. 471 (1995); Savage v. Shinseki, 24 Vet. App. 259 (2011).  In addition, both private audiological examination reports depict pure tone test results in the form of a graph.  The Board is the finder of fact and may interpret the evidence presented when the provided graphical representation is sufficiently clear to permit the proper interpretation.  However, the August 2015 and July 2017 graphs do not show clear decibel measurements at all relevant levels—to include the findings for the Veteran’s left ear at 2000 Hertz and 4000 Hertz.   
The matter is REMANDED for the following action:
After obtaining appropriate authorization from the Veteran, ask the private providers who created the August 2015 and July 2017 audiogram reports to identify what test was used to obtain speech recognition/word discrimination results and to provide pure tone threshold results in chart/numeric format. 

 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Casula, Counsel