Citation Nr: 20007633
Decision Date: 01/30/20	Archive Date: 01/29/20

DOCKET NO. 14-29 482
DATE: January 30, 2020

REMANDED

Entitlement to an initial compensable rating for bilateral hearing loss

REASONS FOR REMAND

The Veteran served on active duty in the Army from December 1965 to November 1967. 

This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

When VA undertakes to provide an examination, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran has been afforded three VA examinations evaluating the severity of his disability throughout the claim period, in November 2009, April 2014, and April 2016. Each examination yielded findings of hearing loss not constituting a disability for VA purposes. See 38 C.F.R. § 3.385 (“[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.”).

However, at an August 2017 hearing before the Board, the Veteran’s representative stated that the April 2016 VA examination results were inadequate, because the examining audiologist was unable to fit headphones properly on the Veteran. The representative stated that there was a notation to this effect in the record; however, the Board was unable to locate such a notation, and the examiner noted on the examination report itself that the results were valid for VA rating purposes.

Consequently, in a February 2018 Remand, the Board directed that the case be returned to the examiner who conducted the April 2016 examination, to clarify whether the examination results were adequate for rating purposes. However, an opinion was obtained instead from another VA audiologist, who opined upon review of the record that there was no evidence that the April 2016 VA examination results were invalid.

Nevertheless, in light of the statements of the Veteran’s representative and without clarification from the examiner who administered the April 2016 examination, the Board finds that the evidence is at least equally balanced as to whether that examination is adequate for rating purposes. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the April 2016 examination was not adequate for VA rating purposes. Accordingly, a remand is necessary to provide the Veteran a new VA examination on his claim.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records and associate them with the claims file.

2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination to evaluate the current nature and severity of his bilateral hearing loss.

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P. Timmerman

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.