Citation Nr: 21026917 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-20 651 DATE: May 4, 2021 REMANDED Entitlement to an increased disability rating in excess of 30 percent for hearing loss, to include whether the reduction in disability rating from 100 percent to 30 percent was proper, is remanded. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. Entitlement to special monthly compensation (SMC) based on deafness is remanded. REASONS FOR REMAND The Veteran had active service from July 1973 to July 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2017 rating decision, which reduced the Veteran's disability rating for bilateral hearing loss from 100 percent to zero percent, effective January 1, 2018. The rating decision also granted entitlement to SMC based on deafness from November 22, 2010 to January 1, 2018, and discontinued basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 effective January 1, 2018. In a January 2018 rating decision, the RO increased the rating for bilateral hearing loss to 30 percent effective January 1, 2018. In November 2019, the Board remanded the appeal for a VA examination to determine the current severity of the Veteran's bilateral hearing loss. The Board noted conflicting evidence regarding the severity of the Veteran's hearing loss during the appeal period. Moreover, the private audiological reports showing severe hearing loss did not include valid speech recognition scores, and as such were invalid for rating purposes. At a November 2020 VA audiological examination, the examiner stated that the Veteran was very inconsistent during testing, and that he fell asleep "a few times." She stated that she suggested he reschedule the appointment due to concern of validity, but the Veteran insisted on continuing. The examiner further stated that she felt the reliability of the test was poor, reasoning that there was poor agreement of pure tones and speech recognition scores. Absent a showing of good cause, a Veteran's refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination for purposes of VA regulations under 38 C.F.R. § 3.655. See generally VAOPGCPREC 4-91 (Feb. 13, 1991). Failure to cooperate during VA examinations "subject[s claimants] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). Here, the examiner did not state that the Veteran was malingering or that the inconsistent results were attributable to an effort on the Veteran's part to obtain a particular result on the testing. The examiner did not indicate whether further testing would yield similarly inconsistent results. To the contrary, she suggested to the Veteran that he return for additional testing. Because VA has the burden of establishing that a disability has improved and that it is reasonably certain that the improvement will be maintained under the ordinary conditions of life, the Board finds that another examination is warranted. See 38 C.F.R. § 3.344 (a). The Veteran is reminded that while VA has a duty to assist in the development of his appeal, he has a duty to cooperate with VA in these efforts. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As determination with respect to the aforementioned claim may have an impact upon the Veteran's claims for DEA benefits and SMC based upon deafness, the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, Board consideration of the merits of the Veteran's SMC and DEA claims are deferred pending the additional development directed as part of this remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria. Recognizing that additional problems may arise in obtaining pure tone and speech recognition testing results, as they did at the November 2020 examination, the Board orders that if testing results are again inconclusive, the examiner must provide a specific reason and provide an opinion as to whether further testing would similarly be inconclusive. If inconsistent results are due to non-cooperation by the Veteran, that should be explained by the examiner. 2. Then, adjudicate the issues remaining on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.