Citation Nr: 21024468 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-27 043 DATE: April 22, 2021 REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to August 1967. This appeal comes from an August 2018 rating decision. A virtual hearing before the undersigned Veterans Law Judge (VLJ) was held in October 2020. A transcript of the hearing is of record. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. As noted in the Board’s previous remand, the July 2018 VA examination found that the Veteran’s the audiometric testing indicates “CNT” (could not test) at puretone thresholds from 500 Hertz to 8000 Hertz. The examiner explained that testing could not be completed because the Veteran was able to have conversation at 60dB but could not respond to puretones until 70 dB-80 dB. Additionally, the 2018 examiner found that the use of the speech discrimination results was not appropriate because the Veteran would not respond to most words despite instructions to do so. In December 2020, the Board of Veterans’ Appeal (Board) remanded the claim to obtain information as to whether Maryland CNC word list was used during an August 4, 2020 evaluation conducted at Alex Matta, Au.D., at Ear Nose and Throat Consultants Quality Hearing Aid Center in Southfield, MI. Pursuant to the Board’s remand directive, clarification letter was submitted in January 2021 indicating that the Maryland CNC word list was not used during the August 2020 evaluation. Table VIA may be used to evaluate hearing based on puretone threshold averages alone, but only “when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.” 38 C.F.R. §4.85(c). No examiner has certified that the use of the December 2020 speech discrimination test is not appropriate, so Table VIA is not for application and the examination itself is not adequate. The Veteran’s VA audiology treatment records show that difficulty obtaining valid speech discrimination scores appears to occur every time he is evaluated for treatment. This is noted many times in the year prior to the filing of the claim and during the appeal period. See, e.g., December 2017 VA audiology record noting “continued difficulty in obtaining speech recognition and discrimination.” The December 2017 VA audiology treatment record made in the year prior to filing the claim observed that the Veteran “would not repeat SRT’s at any level up to 80 dB, however Veteran arrived to clinic not wearing hearing aids and was able to have a conversation while walking down the hall.” The December 2020 puretone threshold averages were: HERTZ 1000 2000 3000 4000 Avg RIGHT 45 70 80 70 66 LEFT 40 70 75 70 64 Depending on speech discrimination scores, these averages could yield a compensable rating. However, the record does not contain valid speech discrimination scores using the Maryland CNC word list, despite many attempts reflected in VA treatment records and in the 2018 examination report. The VLJ noted that the Veteran had to have his ear pressed against the speaker in order to hear what was happening during the hearing. The August 2020 evaluator was able to obtain audiometric testing results, but the Board cannot rely on that evaluation to rate the Veteran’s bilateral hearing loss as the Maryland CNC word list was not used. Review of the record shows that the Veteran does have bilateral hearing loss, but the record does not have probative audiogram records to assess the severity of his hearing loss. In the interest of affording the Veteran a second chance, the Board will remand for a final opportunity to obtain valid audiometric testing results and speech recognition scores. However, the Veteran is hereby notified that he must cooperate and follow directions in all parts of the VA examination in order to assist VA with obtaining accurate evidence for his appeal. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Failure to cooperate without good cause will be seen as tantamount to failing to appear at the hearing and may result in the denial of the appeal. 38 C.F.R. § 3.655; Turk v. Peake, 21 Vet. App. 565 (2008). (Continued on the next page) The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral 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. The Veteran must cooperate with all instructions from the examiner. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.