Citation Nr: 21077273
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 16-39 522
DATE: December 29, 2021

REMANDED

Entitlement to a compensable rating for left ear hearing loss is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from June 1969 to June 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision which continued a noncompensable rating for left ear hearing loss.

In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing.  A copy of the transcript could not be produced due to an audio malfunction.  The Veteran was notified of this in an October 2020 letter but has not requested a new Board hearing.  

In March 2021, the Board remanded this matter to obtain a VA examination to assess the current severity of the Veteran's left ear hearing loss. 

Entitlement to a compensable rating for left ear hearing loss is remanded.

The Veteran was afforded a VA examination in April 2021.  The examiner determined that puretone thresholds and the Maryland CNC speech discrimination scores were invalid due to poor inter-test consistency.  Specifically, that the puretone threshold average did not agree with the speech reception threshold and that speech discrimination scores were not appropriate for this Veteran because of language difficulties, cognitive problems, or inconsistent speech discrimination scores, for example, that make combined use of puretone average and speech discrimination scores inappropriate.  

It is not clear from the examination whether the examiner explained to the Veteran that results were inconsistent or reinstructed the Veteran in order to obtain valid test results.  Further, there is no indication that the RO undertook any efforts to provide the Veteran with another examination, in an attempt to obtain valid test results.

The Board notes that the applicable law provides that when a Veteran refuses to participate or cooperate during a VA examination, it is akin to the failure to report for a VA examination without good cause.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  Claimants who fail to cooperate during VA examinations subject themselves to the risk of an adverse adjudication based on an incomplete and underdeveloped record.  Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (citing 38 C.F.R. § 3.655(a)).  

As the record does not reflect that the Veteran was clearly aware of this obligation, the Board finds the examination to be inadequate and that a remand is necessary in order for the Veteran to receive a new VA audiological examination. 

The matter is REMANDED for the following actions:

1. Obtain the Veteran's VA treatment records for the period from March 2021 to present.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

3. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Owen, 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.