Citation Nr: 21007788 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-36 185 DATE: February 10, 2021 REMANDED Entitlement to an initial compensable disability rating for a left ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to November 1984. The matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In October 2010, the AOJ issued a rating decision granting service connection for a left ear hearing loss disability, effective April 16, 2010. Also, the AOJ assigned a noncompensable (0 percent) rating under Diagnostic Code (DC) 6100. The Veteran timely disagreed in a July 2011 Notice of Disagreement (NOD) and perfected his appeal in a December 2013 VA Form 9. In April 2019, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Then, in May, another VA disability examination was conducted. In September, the Board issued a remand for the AOJ to consider the recent examination and re-adjudicate the claim. In September 2020, the AOJ re-adjudicated the claim; the Veteran’s claim for an initial compensable rating (more than 0 percent) was denied. Later, in November, the case was returned to the Board. Entitlement to an initial compensable disability rating for a left ear hearing loss disability is remanded. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new medical examination before the Board is able to decide on the merits. This is because the medical examinations of record are not sufficient to evaluate the Veteran’s claims of worsening symptoms. Also, some of those examinations do not confirm whether the Maryland CNC test was used as part of the audiometric testing. The VA has a duty to assist claimants and must make “reasonable efforts to assist a Veteran in obtaining evidence necessary to substantiate the his or her claim for benefits.” 38 U.S.C. § 5103A(a)(1). The duty to assist requires the VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). To trigger the need for a new examination, there must at least be an allegation that the claimant’s condition has worsened. Id. The duty to assist also requires the VA to seek clarification of evidence that is essential for a proper decision, to include unclear or insufficient medical examination reports. Savage v. Shinseki, 24 Vet. App. 259, 270-72 (2011). When it comes to claims for a hearing loss disability, VA regulations require that medical examination include a controlled speech discrimination test with the Maryland CNC word list and a puretone audiometry test. 38 C.F.R. § 4.85(a). If it is not clear if the Maryland CNC test was used by the examiner, the VA should seek clarification in cases where the missing information is relevant; one such instance is when staged ratings may apply. Savage, 24 Vet. App. 270-271. The record reflects five audiometric tests were performed since the filing of the Veteran’s increased rating claim and his Board hearing. The first test was conducted in October 2010. The second, in May 2016, and the examiner noted it is not reliable for rating purposes. The third, in November 2016. The fourth, in January 2017. And the fifth, in June 2018, and the examiner did not confirm whether the Maryland CNC test was used. See October 2010 VA DBQ; May 2016 VA DBQ at 2; November 18, 2016, Audiological Evaluation; January 2017 VA DBQ; and June 1, 2018, VA Medical Center (VAMC) Record by J.S.D., Au D. In April 2019, a Board hearing was conducted. There, the Veteran asserted his left ear hearing loss disability had worsened since his last VA disability examination. See Transcript dated April 2019 at 5. The Veteran reported he has to stand in front of people to understand what he is being told. And he has to turn his head to the left to hear people. Id. at 3, 5. He testified his left ear hearing loss disability interferes with his work as a stocker. Id. at 4. He stated his hearing loss disability interferes with his ability to hold a conversation with co-workers, especially when they are talking and moving. And he has to ask them to repeat themselves. Id. at 4, 5. He also testified that his hearing aid does not provide much help. He has to turn his hearing aid up loud to hear all that is being said. Id. at 3. Two audiometric tests were conducted after his Board hearing: the first in May 2019; the second, in August 2020. The examiner who conducted the May 2019 audiometric testing opined that the scores are questionable and noted they are not valid for rating purposes. See May 2019 VA DBQ at 3, 10. The examiner explained that the results may reflect an exaggerated level of hearing acuity. Id. The examiner who conducted the August 2020 audiometric testing did not confirm whether the Maryland CNC test was used. See August 4, 2020, VAMC Record by E.W., MCD, CCC-A. And when the AOJ re-adjudicated the claim, it relied on this examination. Turning to the Veteran’s claim for disability compensation, the Board finds the Veteran’s testimony of worsening symptoms, credible. Although the Veteran is not competent to diagnose a hearing loss disability or render an opinion as to whether the criteria for a compensable rating under DC 6100 are met, he is competent to report whether he observes greater difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 467-70 (1994). Here, he has observed increased difficulty hearing people and objects, like the television. See Transcript dated April 2019 at 3-5. The Board also finds the audiometric tests conducted after the April 2019 Board hearing insufficient to evaluate the Veteran’s hearing loss disability. 38 C.F.R. § 4.2. The examiner who conducted the May 2019 examination has indicated it is not sufficient for rating purposes. And the examiner who conducted the August 2020 audiometric testing did not indicate that she used the Maryland CNC test. As a result, the current record does not adequately portray the state of his disability; thus, a new VA disability examination is warranted. Palczewski, 21 Vet. App. at 182-83. Also, the Board finds it necessary for the AOJ to attempt to obtain clarification whether the examiners who conducted the June 2018 and August 2020 audiometric tests used the Maryland CNC test. Those examinations bear greatly on evaluating the state of the Veteran’s hearing loss disability before and after he notified the VA that he has observed worsening symptoms; and that information would help substantiate if staged ratings may apply. Savage, 24 Vet. App. 270-271. This matter is REMANDED for the following action: 1. Forward the claims file, including previous examination reports and a copy of this remand, to a qualified medical professional for preparation of a VA medical examination to determine the current severity of his service-connected left ear hearing loss disability. Any studies, tests, and evaluations deemed necessary by the examiner must be performed, including the Maryland CNC and puretone audiometry test. The examiner must confirm whether the Maryland CNC test was used, if not indicated on the form. The examiner should also report the effect the Veteran’s left hearing loss disability has on his occupational functioning and daily activities. In doing so, the examiner should consider the following: a. The Veteran’s statement that he has to stand in front of people to understand what he is being told. And he has to turn his head to the left to hear people. b. His statement that his left ear hearing loss disability interferes with his work as a stocker. He states his disability interferes with his ability to hold a conversation with co-workers, especially when they are talking and moving. Also, he has to ask them to repeat themselves. c. His statement that his prescribed hearing aid does not help much. He has to turn his hearing aid up loud to hear all that is being said. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Make another attempt to obtain clarification from the Birmingham VAMC whether the examiner who performed the June 1, 2018, audiometric test used the Maryland CNC test. If that VAMC cannot confirm the Maryland CNC test was used, a formal finding noting steps taken to obtain clarification must be included in the claims file. 3. Attempt to obtain clarification from the Birmingham VAMC whether the examiner who performed the August 4, 2020, audiometric test used the Maryland CNC test. If that VAMC cannot confirm the Maryland CNC test was used, a formal finding noting steps taken to obtain clarification must be included in the claims file. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.