Citation Nr: 21055407 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 07-22 608 DATE: October 20, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to April 1975 and May 1975 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a December 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ) which granted an increased 20 percent rating for the Veteran's bilateral hearing loss from August 4, 2006, the date deemed by the AOJ as receipt of his claim for increase. The Veteran testified before a Veterans Law Judge (VLJ) at a January 2010 hearing. A transcript of this hearing is of record. In June 2021, the Veteran was informed that the VLJ who presided over the January 2010 hearing is no longer available to participate in his appeal and he had the right to request another optional Board hearing. He was advised that if he did not respond within 30 days of the letter, it would be assumed that he did not want another hearing. To date, a response to his communication from the Veteran has not been received. Accordingly, the Board will proceed with adjudication. The claim of entitlement to an evaluation in excess of 20 percent for bilateral hearing loss was most recently denied in a November 2018 Board decision, which the Veteran appealed to the Court. In a December 2020 Memorandum Decision, the Court set aside the November 2018 Board decision and remanded the matter for further development, if necessary, and readjudication. The extensive procedural history of this appeal prior to the November 2018 Board decision, including prior Board remands and decisions and Court remands, is detailed in the November 2018 Board decision. The Veteran was initially represented by the Texas Veterans Commission (TVC). However, in a May 2021 statement the Veteran requested TVC be "removed" as his POA (Power of Attorney) and indicated that he was his "own POA." On the same day, the Veteran also submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, indicating that he was not electing a service organization and designated himself as his representative. The Veteran has not appointed a new representative and is proceeding with his appeal pro se. 1. Bilateral Hearing Loss As noted in the September 2020 Brief of the Appellee, Secretary of Veterans Affairs, "remand is warranted for the Board to obtain a new audiological evaluation regarding the Appellant's bilateral hearing loss" because a December 2011 audiology note shows he "has alleged a worsening of hearing since 2010." In this regard, subsequent to the December 2011 audiology note, the Veteran was afforded VA hearing loss examination in December 2012; however, the examiner found the examination results were invalid and should not be used for rating purposes because the "Veteran's volunteered pure-tone thresholds and pure-tone averages are elevated compared to speech recognition thresholds, indicating poor test quality. The examiner noted that "use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure-tone average and speech discrimination scores inappropriate." Upon review of the record, the examiner also noted that "all hearing tests found revealed inconsistent and fluctuating hearing thresholds." Considering the foregoing, the Board finds that a new audiological examination to assess the severity of the Veteran's bilateral hearing loss (including functional effects) during the appeal period from August 2005, one year prior to the receipt of his claim for increase, is necessary. The most recent VA treatment records available for review are dated in October 2017. On remand, completed updated records of treatment for the Veteran's bilateral hearing loss disability should be obtained. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his bilateral hearing loss disability, to specifically include updated VA treatment records since October 2017. All audiogram pure-tone test results completed since December 2011, the most recent audiogram from the audiology clinic available for review, should be printed and uploaded into the virtual benefits file (the Board does not have access to audiogram pure-tone test results and they are not included in the CAPRI records available for review in the Veteran's claims file). 2. After the development sought in paragraph 1 is completed, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and medical opinion to determine the nature and severity of his service-connected bilateral hearing loss. The Veteran's entire record (to include this Remand and any records received pursuant to the development ordered above) must be reviewed by the examiner and the examiner should respond to the following: a) In addition to reporting audiometric findings, to the extent possible, the examiner should elicit from the Veteran an account of the impact his hearing loss has on his occupational and daily functioning (and opine whether the account is consistent with the level of hearing acuity shown by audiometry). (Continued on the next page) [If valid audiometry cannot be obtained, explain the reason for the inability (e.g., testing is inadequate to obtain accurate results despite co-operation, or Veteran is unable to follow instructions, or Veteran is malingering, etc.).] b) After consideration of the December 2012 VA hearing loss examination report and opinion that "all hearing tests found revealed inconsistent and fluctuating hearing thresholds," the examiner should review the VA examination reports, audiogram pure-tone test results from the VA audiology clinic completed during the appeal period since August 2005, and August 2018 report of private audiometric testing and, to the extent possible, comment on the effects of the Veteran's bilateral hearing loss on his occupational and daily functioning from August 2005 to the present, including fluctuations in the level of severity (as reflected in the December 2011 VA audiology note wherein he alleged "a worsening of hearing since 2010.") M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.