Citation Nr: 21064328 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-21 312 DATE: October 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had service in the U.S. Army and Army National Guard. He had a period of active-duty service from June 1967 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2019, the Board denied the Veteran's increased rating claim for bilateral hearing loss. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which granted a Joint Motion for Remand (JMR) in October July 2021. The JMR detailed the parties' agreement that the Board erred by providing inadequate reasons or bases for denying the Veteran's increased rating claim. Accordingly, the claim was returned to the Board for further adjudication. 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. The Veteran filed an increased rating claim for bilateral hearing loss in August 2014. He was provided a VA examination in September 2014 to determine the nature and severity of his hearing loss. In January 2019, the Board concluded that this examination was inadequate because the examiner did not consider the Veteran's reported symptoms, which included tinnitus. In this decision, the Board also noted that the record contained two additional VA audiological evaluations from July 2014 and August 2018. However, these examinations are inadequate for rating purposes because the VA audiologist used the Northwestern University Auditory Test Number 6 (NU-6) to measure the Veteran's speech discrimination scores rather than the Maryland CNC test that is required under 38 C.F.R. § 4.85(a). The Board remanded the Veteran's claim in order to obtain a new VA examination, but the Veteran declined to attend. He noted in a September 2019 letter that VA had sufficient opportunity to ask for additional tests and information before his claim was initial decided before the Board. Nevertheless, the Veteran did submit a private audiological examination performed in June 2020. In October 2020, the Board denied the Veteran's increased rating claim due to the Veteran's failure to appear for a VA examination pursuant to 38 C.F.R. § 3.655. This provision instructs that a claim for an increased rating shall be denied when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such an examination. However, the claim was remanded to the Board based on a July 2021 JMR, in which the parties agreed that the Board erred by not addressing whether an additional VA examination was necessary in light of the June 2020 private audiological examination that was already on record. The Board has since reviewed this evidence and finds that it is inconsistent with the other evidence on record. At the June 2020 examination, the Veteran's speech discrimination under the Maryland CNC was 40 percent in the right ear and 28 percent in the left ear. Contrary to these findings, the Veteran participated in the July 2018 hearing and responded to questions without any need for repetition or clarification. Additionally, the VA audiological examination from August 2018 was 80 percent for the right ear and 60 percent for the left ear. While the NU-6 standard cannot be used for rating purposes, it does signify that the Veteran's hearing was drastically better than measured at the June 2020 VA examination. Accordingly, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran's hearing loss. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA audiological examination to determine the nature and severity of his bilateral hearing loss. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report and done consistent with the criteria in the Rating Schedule. The electronic claims file should be made available for review in connection with this examination. 3. If the Veteran does not appear for the examination, the AOJ should ensure that notice was sent to the proper address for the Veteran and that evidence that the notice was sent is in the file. 4. After completing the above actions, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.