Citation Nr: 20006928 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-23 517 DATE: January 28, 2020 REMANDED Entitlement to a rating in excess of 40 percent prior to November 1, 2015, and in excess of 20 percent thereafter, for service-connected bilateral hearing loss, to include the propriety of the reduction from 40 percent to 20 percent effective November 1, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to January 1956. With regard to the characterization of the issue on appeal, the Board notes that the Veteran filed his initial claim for service connection for bilateral hearing loss in May 2012. In a February 2013 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for bilateral hearing loss and awarded an initial 40 percent disability rating, effective May 4, 2012, the date his claim for service connection was received. [Although the award was effectuated at the 30 percent level, this error was rectified in a later rating decision]. In August 2013, the Veteran filed a claim for an increased rating. In February 2014, he underwent a VA audiological examination and, in April 2014, the AOJ denied a rating higher than 40 percent, and proposed to reduce his rating from 40 percent to 10 percent based on the findings contained in the February 2014 VA examination report. In May 2014, the Veteran submitted a private audiogram arguing that the rating assigned to his service-connected bilateral hearing loss should not be reduced and that the evidence he was submitted supported the assignment of a rating higher than 40 percent. In June 2015, the Veteran filed another claim for an increased rating for his service-connected bilateral hearing loss. He underwent a VA audiological examination in July 2015 and, in an August 2015 rating decision, the AOJ reduced the rating assigned to his service-connected bilateral hearing loss from 40 percent to 20 percent, effective November 1, 2015, based on the findings contained in the July 2015 VA examination report. In October 2015, the Veteran argued against the AOJ’s decision to reduce the rating assigned to his service-connected bilateral hearing loss, and he requested a hearing to present argument in support of his claim. Additionally, he submitted an August 2015 private audiogram in support of his claim. In January 2017, the Veteran filed another claim for an increased rating for his service-connected bilateral hearing loss. He underwent a VA examination in June 2017, and the AOJ denied his claim for an increased rating in the June 2017 rating decision on appeal. The Board finds that the issue on appeal stems from the Veteran’s August 2013 claim for an increased rating, and the April 2014 rating decision that denied a rating higher than 40 percent. Specifically, although the Veteran did not file a notice of disagreement with this determination, new and material evidence in the form of the April 2014 private audiogram (submitted in May 2014), was added within one year of the April 2014 rating decision, which denied a rating higher than 40 percent. 38 C.F.R. § 3.156(b) (2019). Furthermore, the August 2015 rating decision that effectuated the AOJ’s proposal to reduce the rating assigned to the Veteran’s service-connected bilateral hearing loss also did not become final as new and material evidence was once again added to the record within one year of the August 2015 rating decision, in the form of another private audiogram. In a March 2018 Statement of the Case, the AOJ discussed the Veteran’s prior ratings, current ratings, as well as the propriety of the reduction effective November 1, 2015. As such, the Board finds that the appeal includes whether a rating in excess of 40 percent prior to November 1, 2015, and in excess of 20 percent thereafter, is warranted for the Veteran’s service-connected bilateral hearing loss; as well as the propriety of the reduction from 40 percent to 20 percent effective November 1, 2015. As will be explained, the Board finds that a remand is necessary to ensure an adequate record upon which to decide the Veteran’s claim. First, the Board notes that there appear to be outstanding VA treatment records that may be pertinent to the appeal. Specifically, an April 2015 VA Audiology Consult indicates that the Veteran underwent an audiological evaluation and, although the treatment record provides a summary of the results, the specific results of the April 2015 audiogram are not included. On remand such should be requested. Additionally, the April 28, 2014 private audiogram submitted by the Veteran does not indicate whether the Maryland CNC test was used to test speech recognition. On remand, clarification should be requested as to whether this test was used. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Additionally, the Board finds that the Veteran should be afforded another VA audiological examination as his hearing loss may have worsened since the last VA examination in June 2017. Specifically, a May 2018 VA audiogram indicates a possible worsening of hearing acuity. Thus, to ensure an adequate record upon which to decide the appeal, the Board finds that a more contemporaneous examination is needed. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the claims file, including the results of April 2015 VA audiogram, as well as all records dated from June 23, 2016, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. Take appropriate steps to obtain clarification from the Veteran or the administrator of the April 28, 2014 private audiological test as to whether the Maryland CNC word recognition test was used for that test. All efforts should be documented in the claims file. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is asked to review the Veteran’s prior VA and private audiometric test results. Following a review of the record, to include the Veteran’s statements, the examiner should describe all symptoms and functional effects associated with his bilateral hearing loss, including any impact that his bilateral hearing loss has on his activities of daily living. (Continued on Next Page) 5. Thereafter, review all evidence and argument received and readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.