Citation Nr: 1806495 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife (audiologist) ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2012 by the Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2017, the Veteran and his wife, in the capacity as an audiologist, testified during a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the July 2012 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial, noncompensable disability rating. The Veteran is seeking a higher initial rating. Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. Regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, the Maryland CNC, and a pure tone audiometry test. See 38 C.F.R. § 4.85(a). During the September 2017 Board hearing, the Veteran testified that both he and his wife are licensed audiologists in the state of North Carolina. Further, at the time the Veteran was given his VA audiology examination in April 2012, the Veteran himself was a licensed QTC examiner for VA and routinely administered the same examination. Due to this fact, the Veteran states that it is his belief his speech discrimination scores are artificially elevated because he was familiar with the testing procedures and all the material used to determine his speech discrimination score. The Veteran noted that his April 2012 VA examination utilized the Maryland CNC speech discrimination test, but that there are dozens of other standardized testing materials that can be used to obtain speech discrimination scores. In fact, both the Veteran and his wife stated that the Maryland CNC test uses a standard list of 80 words, 40 for each ear, and the list never changes in determining the speech discrimination scores. Further, the Veteran's wife asserted that the decibel level at which the test is administered is incredibly loud. In support of his claim, he submitted a January 2014 report that was based on a December 2013 audiological examination. This examination used the NU6 Test, or the Northwestern University Test, and noted the speech scores for the right and left ears were 48 percent and 36 percent, respectively, as opposed to 86 percent and 80 percent, as noted during his April 2012 VA examination that utilized the Maryland CNC test. The Board finds that given the unique circumstances in this case, additional development is required. The Veteran must be provided with a new VA examination to specifically address the current level of severity of his bilateral hearing loss as the evidence indicates that the disability has increased in severity since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186(1995). In the examination report, the examiner must address the impact of the Veteran's hearing loss on his daily functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). During this examination, the VA examiner is directed to certify that use of speech discrimination scores is not appropriate in this case due to the fact the Veteran is familiar with the list of words and, as such, his scores are artificially elevated. See 38 C.F.R. § 4.85(c); see also M21-1, III.iv.4.B.4.p. As such, the severity of the Veteran's hearing impairment must be based on the puretone threshold averages. Finally, the AOJ should obtain any additional, pertinent medical records - including audiogram reports - that the Veteran has received for his bilateral hearing loss and take appropriate measures to obtain those records. See 38 C.F.R. § 3.159(c)(2); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Associate any pertinent, outstanding records with the electronic claims folder. 2. Obtain a copy of the Veteran's curriculum vitae/ resume, or a certification from VA that he is a licensed audiologist who has given VA audiological examinations for VA rating purposes. This information should include how long he has been certified by VA to perform the audiological examinations and an approximation of how many examinations he has administered. 3. Notify the Veteran that he may submit statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his hearing loss. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an examination to determine the current severity of his bilateral hearing loss. All indicated tests should be conducted. As discussed above, the Board has determined that the use of the speech discrimination test is not appropriate in this case because of the Veteran's unique position as an audiological examiner and his innate knowledge of the Maryland CNC speech discrimination word lists. Therefore, at the outset of the examination, THE VA EXAMINER IS DIRECTED TO CERTIFY THAT USE OF THE SPEECH DISCRIMINATION TEST IS NOT APPROPRIATE WITH THE DESIGNATION OF "CT" (CANNOT TEST) AND THE EXAMINATION WILL FOCUS ON HEARING IMPAIRMENT BASED ONLY ON THE PURETONE THRESHOLD AVERAGE. See 38 C.F.R. § 4.85(c); see also M21-1, III.iv.4.B.4.p. THE VA EXAMINER MUST ALSO SPECIFICALLY COMMENT ON THE FACT THAT THE REMAND DIRECTIVES HAVE BEEN READ AND IT IS UNDERSTOOD THAT TESTING IS TO OCCUR USING ONLY THE PURETONE THRESHOLD AVERAGES OF THE RIGHT AND LEFT EARS. In addition to objective test results, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 5. The RO should then readjudicate the appeal. If it is determined a higher rating is warranted based on the provisions set forth in 38 C.F.R. § 4.85(c), the RO is also directed to consider the holding in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), and must include a discussion on the private audiology reports submitted by the Veteran dated November 2011 and January 2014 when determining a new effective date, if applicable. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case, and give the Veteran an opportunity to respond before returning the appeal to the Board. 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 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).