Citation Nr: 21070405 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-23 320 DATE: November 23, 2021 REMANDED Entitlement to a compensable rating for bilateral hearing loss prior to February 6, 2016, and in excess of 20 percent since, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1974 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the Veteran's claim for an increased (compensable) evaluation for his service-connected bilateral hearing loss. In a May 2015 decision, the Board remanded the appeal so that the Veteran could be scheduled for a hearing before a Veterans Law Judge (VLJ). The Veteran testified at a videoconference hearing before the undersigned VLJ in January 2016. Thereafter, in March 2016, the Board remanded the claim for additional evidentiary development, including to obtain outstanding VA audiometric records. In an April 2016 rating decision, the Appeals Management Center (AMC) granted an increased 20 percent evaluation for the Veteran's bilateral hearing loss, effective from February 6, 2016, the date of a VA audiological examination reflecting that the Veteran's hearing loss had increased in severity. As this did not represent a full grant of benefits sought on appeal, the claim for an increased evaluation for bilateral hearing loss remained in appellate status and thus returned to the Board in May 2018. See AB v. Brown, 6 Vet. App. 35 (1993). However, because the AOJ failed to obtain the requested VA audiology record, the Board again remanded the claim, directing that the AOJ complete the development requested by the Board in March 2016. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand). Following the issuance of a July 2019 supplemental statement of the case (SSOC) that continued to deny a compensable evaluation for bilateral hearing loss prior to February 6, 2016, and a rating in excess of 20 percent since, the claim was recertified to the Board in August 2019. In a December 2019 decision, the Board noted that the AOJ had not yet obtained the December 2015 audiometric test results, despite the prior March 2016 and May 2018 remand instructions, and remanded the claim for a higher rating for bilateral hearing loss yet again. See Stegall, 11 Vet. App. at 271. In January 2020, the December 2015 VA audiology puretone threshold and speech recognition testing results were associated with the Veteran's claims file. However, as explained below, another remand is required in this case. Entitlement to a compensable rating for bilateral hearing loss prior to February 6, 2016, and in excess of 20 percent since, is remanded. As noted above, the Veteran was last provided a VA examination for his service-connected bilateral hearing loss in February 2016. See February 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). In a recent submission, the Veteran, through his representative, indicated that the conditions have increased in severity in the years since that examination and requested reevaluation of the Veteran's service-connected bilateral hearing loss. See, e.g., November 2020 Appellate Brief (stating that the Veteran's bilateral hearing loss "is much more severe than current rating suggests" and that his condition is "getting worse," and requesting a remand for "medical examination . . . to establish [the] severity of [the Veteran's hearing loss] symptoms"). Moreover, the available VA audiometric testing reflects a progressive worsening of the Veteran's puretone threshold levels from 2011 to 2016. Compare December 2011 VA Audiological Evaluation (reflecting a puretone threshold average of 43.75 decibels on the right and 52.5 decibels on the left), with December 2015 VA Audiological Evaluation (reflecting a puretone threshold average of 60 decibels on the right and 56.25 decibels on the left), and February 2016 VA Hearing Loss and Tinnitus DBQ (reflecting a puretone threshold average of 68 decibels on the right and 65 decibels on the left). Accordingly, considering that more than five years have passed since the Veteran was last provided a VA audiological examination, and given the evidence suggesting that his bilateral hearing loss has increased in severity in the intervening years, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran's service-connected bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board finds, therefore, that contemporaneous examination is required to ascertain the nature and current severity of the Veteran's bilateral hearing loss. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: Schedule the Veteran for a VA audiological examination, conducted by a state-licensed audiologist, to address the level of disability of his service-connected bilateral hearing loss. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose. The examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale. The examiner must also provide a full description of any functional impairment resulting from the Veteran's bilateral hearing loss and its effects on his ordinary activities, to include consideration of the Veteran's contentions as to the functional effect of his bilateral hearing loss. The examiner must provide a complete rationale for any opinion provided. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.