Citation Nr: 21023447 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-22 234 DATE: April 20, 2021 REMANDED Entitlement to an increased rating for service-connected bilateral hearing loss, rated as 20 percent disabling prior to January 26, 2017, 30 percent disabling from January 26, 2017, to October 2, 2019, and 50 percent disabling thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1950 until his honorable retirement in June 1978. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c) and (d). This case comes before the Board on appeal from May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which continued the Veteran’s 20 percent disability rating for bilateral hearing loss. Since that decision, so called “staged ratings” have been awarded. In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In a January 2018 decision, the Board denied the Veteran’s claim for an increased disability rating for bilateral hearing loss. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Remand (JMR) in which they stipulated the Board erred because it did not address whether a new VA examination was necessary to determine the severity of the Veteran’s bilateral hearing loss. The Board had mentioned in its decision that a private October 2017 audiologic evaluation, which was not adequate for VA rating purposes, suggested increased hearing loss. The Court entered an order in November 2018 vacating the Board’s decision in full and remanding the matter to the Board for readjudication. In June 2019, February 2020, and October 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to afford the Veteran a new VA examination addressing the severity of his bilateral hearing loss and to obtain VA medical records associated with the Veteran’s bilateral hearing loss. The RO accomplished the Board’s directives. The case now returns to the Board for adjudication. While this matter was in remand status, the Veteran submitted two private audiologic evaluations, dated September 9, 2020, and September 24, 2020. Notably, once again, neither evaluation used the Maryland CNC word list to determine speech discrimination. In his April 2021 appellate brief, the Veteran asserts these evaluations warrant an increased rating of at least 60 percent for his bilateral hearing loss and subsequently entitle him to consideration of a total disability rating based upon the application of 38 C.F.R. § 4.16(a). The Board notes that by regulation, however, “[a]n examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC) and a Puretone audiometry test.” 38 C.F.R. § 4.85 (emphasis added). The Board observes that the present situation is substantially similar to what led the parties to submit a JMR before the Court. Thus, the Board finds another remand is necessary. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The RO should take any additional, reasonable, and necessary developmental action. 3. Obtain a VA examination from an appropriately qualified, licensed audiologist to assess the severity of the Veteran’s bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to do the following: (a.) The examiner is asked to address the severity of the Veteran’s bilateral hearing loss. The evaluation should consist of all necessary testing, to include objective test results from Maryland CNC speech discrimination testing and Puretone audiometric testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why this is so. (b.) The examiner is also asked to fully describe the functional effects of the Veteran’s bilateral hearing loss disability on his occupational functioning, daily life, and ordinary activities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner is reminded to consider the Veteran’s lay statements. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion(s). See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). 4. The RO should pursue development of all information to its logical conclusion. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.