Citation Nr: A20007320 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191024-41240 DATE: April 30, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to June 1965. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a September 4, 2019 rating decision. An October 2019 notice of disagreement (NOD) was submitted (via VA Form 10182) and the direct review docket was selected. The Board acknowledged receipt of this NOD in a November 2019 letter. As the direct review docket was selected, the Board’s decision is based on the evidence of record at the time of the September 4, 2019 rating decision. See 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. The Board notes that on the October 2019 NOD, listed as an issue to be appealed was “Resultant Combined Percentage Disability.” This issue is inherently included with the initial rating claim on appeal, as if an increased initial rating were to be granted, the Veteran’s combined rating would be reevaluated. See generally 38 C.F.R. § 4.25 (outlining the process for determining a veteran’s combined rating). As such, it is not a separate issue on appeal. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Initial Rating – Bilateral Hearing Loss Disability from June 18, 2014 to September 4, 2019 The Board finds that prior to the September 4, 2019 rating decision, a duty to assist error occurred. Specifically, the agency of original jurisdiction (AOJ) did not take appropriate action to request clarification regarding a June 2016 private examination and remand is therefore required to take such action. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). In the September 4, 2019 rating decision on appeal, the AOJ implemented an August 2019 Board decision and granted entitlement to service connection for a bilateral hearing loss disability. The AOJ ssigned an initial 10 percent rating for the Veteran’s disability from June 18, 2014 under Diagnostic Code (DC) 6100. The AOJ assigned this rating based on the results of an April 2017 VA examination. The AOJ referenced a June 2016 private audiogram from Hearing Life, but stated that such was “insufficient for rating purposes,” without explanation for this conclusion. 38 C.F.R. § 4.85 states that “[a]n 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 puretone audiometry test.” As referenced, the evidence of record included a June 2016 private record from Hearing Life. This record included the results of pure tone audiometry testing. This record also included results of “WRS” or word recognition scores, which appear to be synonymous with speech discrimination results. See Savage v. Shinseki, 24 Vet. App. 259, 260 (2011) (describing the results of a private audiological evaluation as including “word recognition, or speech discrimination, scores,” suggesting such are synonymous). The record also noted a “Clinician” of G.S. and listed a “License/Cert. #,” suggesting that this clinician completed the examination. The Board observes that the pure tone audiometry results and the word recognition scores contained in the June 2016 private record from Hearing Life appear to correlate with a 30 percent rating under DC 6100. It is not clear from the June 2016 private record, however, whether this examination met the requirements outlined in 38 C.F.R. § 4.85 to be a valid examination for hearing impairment for VA purposes. First, while word recognition scores were provided, it was not indicated whether such were obtained through the use of the Maryland CNC test, as specifically required by 38 C.F.R. § 4.85. Second, while it was noted that the examination was completed by a “Clinician” and a “License/Cert. #” was provided, it was not indicated whether this clinician was a state-licensed audiologist, as specifically required by 38 C.F.R. § 4.85. The AOJ did not request clarification from the private examiner or the Veteran as to these unclear aspects of the June 2016 private record. The Board finds that the AOJ committed a pre-decisional duty to assist error by not seeking clarification of the June 2016 private examination. 38 U.S.C. § 5103A(a) states that VA “shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” The United States Court of Appeals for Veterans Claims (Court) in Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) stated that: pursuant to section 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it 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 either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration. The Court in Savage additionally stated that “our holding is limited to those instances in which the missing information is relevant, factual, and objective–that is, not a matter of opinion–and where the missing evidence bears greatly on the probative value of the private examination report.” The Court also specifically discussed the situation in the case before the Board – where a private examination did not identify whether the Maryland CNC test was used – and stated that “whether the Maryland CNC Test was used by the private examiner in the…hearing tests is relevant because it is the only test that VA will consider in evaluating a person’s hearing disability” and “the question of which speech recognition test was used is a factual, objective one to which there is a yes or no answer; the question of whether the Maryland CNC Test was used does not in any way rely on the opinion of the examiner.” Applying Savage to this case, the Board finds that it was a pre-decisional duty to assist error by the AOJ to not seek clarification of the June 2016 private examination as to whether the Maryland CNC test was used. Similarly, the Board finds that it was also a pre-decisional duty to assist error by the AOJ to not seek clarification of the June 2016 private examination as to whether the examination was conducted by a state-licensed audiologist. This issue is similar to the previously discussed issue of what speech recognition test was used. First, whether the examination was conducted by a state-licensed audiologist is relevant because VA will only consider examination results from this type of medical professional in evaluating a veteran’s hearing disability. Second, the question of whether a state-licensed audiologist conduced the June 2016 examination “is a factual, objective one to which there is a yes or no answer; the question…does not in any way rely on the opinion of the examiner.” As such, applying Savage to this case, the Board finds that a pre-decisional duty to assist error was committed. In sum, remand is required for the AOJ to request clarification regarding the June 2016 private examination, specifically as to whether the Maryland CNC test was used and whether such examination was conducted by a state-licensed audiologist. The matter is REMANDED for the following action: Take appropriate action to request clarification from the examiner and/or Veteran regarding the June 2016 private examination, specifically as to whether the Maryland CNC test was used and whether such examination was conducted by a state-licensed audiologist. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.