Citation Nr: 21062509 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-31 813 DATE: October 7, 2021 REMANDED Entitlement to an initial compensable disability rating for the service-connected bilateral hearing loss prior to May 29, 2019 is remanded. REASONS FOR REMAND The Veteran had active service from October 1955 to September 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Board remanded this issue for further development in July 2018. In a September 2019 rating decision, the RO increased the Veteran's disability rating for his bilateral hearing loss from zero percent to 20 percent disabling, effective May 29, 2019, based on the results of a May 29, 2019 VA audiological evaluation. In December 2019, a Board decision denied the Veteran higher ratings for his bilateral hearing loss, for the appellate periods prior to, and since, May 29, 2019. The Veteran appealed the December 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), arguing that an increased rating was warranted for his bilateral hearing loss. In a November 2020 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's December 2019 decision as it pertained to the issue of entitlement to an initial compensable rating prior to May 29, 2019 for the Veteran's service-connected bilateral hearing loss. The Court then remanded the appeal to the Board for readjudication consistent with the JMPR. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2). The Veteran contends that the severity of his bilateral hearing loss warrants a compensable rating prior to May 29, 2019. In the November 2020 JMPR, the parties agreed that additional evidentiary development is warranted, analogous to that pursued in Swain v. McDonald, 27 Vet. App. 219 (2015). In Swain, the record contained a "February 2008 VA audiometric examination that utilized the Maryland CNC test," and "November 10, 2009," and "December 9, 2010," private audiometric examination reports, with "[n]either examination not[ing] which test was used to obtain the results," and where hearing loss data "was presented in graphical format." Id. at 220-21. In that case, the Board directed that another VA medical opinion be obtained for the examiner to "interpret the 2009 and 2010 private audiometric test results in relation to the examiner's own results of Mr. Swain's hearing loss." Id. at 221. The June 2013 VA examiner found that 2013 audiometric testing results were "consistent with Mr. Swain's November 2009 and December 2010 audiometric test results." Id. Subsequently, the Board remanded the claim to "determine the type of hearing tests used in the 2009 and 2010 private audiometric examinations, and to have a VA examiner interpret the numeric results of the 2009 and 2010 examinations." Id. The 2009 examiner responded that she had used the NU-6 Word List. Id. The 2013 VA examiner identified the numeric results obtained in the 2009 and 2010 examinations, which he opined "were consistent with the 2013 examination results." Id. Based on the "unrefuted record," the Court found that the "ascertained fact is that Mr. Swain had hearing loss as of November 10, 2009, consistent with the June 2013 Maryland CNC test results," and thus remanded the issue for the Board to assign an effective date of November 10, 2009 for the 10-percent disability rating. Id. Here, the record indicates that the Veteran underwent a November 2017 private audiological evaluation, where the Maryland CNC test was not utilized. As such, the Board cannot use this private audiogram to accurately assess the severity of the Veteran's hearing loss for VA purposes. Pursuant to Swain, and the November 2020 JMPR, a remand is required for the RO to obtain a VA medical opinion which interprets the November 2017 private audiometric test results in relation to the May 2019 VA audiological evaluation results that used the Maryland CNC test. The Board cannot make a fully-informed decision until a VA addendum opinion is obtained on remand. The Board also notes that the Veteran's attorney requests that the Board remand this appeal "to allow proper interpretation of the Veteran's audiological examination prior to May 2019." See Attorney's February 2021 Brief. Accordingly, the matter is REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA clinician to obtain a medical opinion to determine the severity of the Veteran's bilateral hearing loss prior to May 29, 2019. The entire claims file, including a complete copy of this Remand, should be made available to, and be reviewed by, the clinician, and the clinician should note such review. [If necessary, schedule the Veteran for a new VA hearing loss examination with the clinician.] The examiner is asked to: Provide an opinion that interprets the November 2017 private audiometric test results in relation to the May 2019 VA audiological evaluation which used the Maryland CNC test. Specifically, the examiner should opine whether the results of the November 2017 private audiometric test reflect a level of severity of bilateral hearing loss consistent with that found on the May 2019 VA hearing loss examination. If possible, the examiner should provide estimated Maryland CNC test results for the November 2017 private audiogram. In formulating this opinion, the examiner should discuss all relevant evidence as well as the history provided by the Veteran. The examiner must also provide a complete rationale for all opinions expressed. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, Associate 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.