Citation Nr: 22008081 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-44 492 DATE: February 11, 2022 REMAND Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1978 to February 1979 and from January 1991 to March 1991, with additional periods of service in the Army Reserve and National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in September 2018 and June 2021 for additional development. Unfortunately, the evidence of record is not sufficient to fairly adjudicate the Veteran's claim; therefore, remand is necessary once again. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has a bilateral hearing loss disability that is related to his active military service. The Veteran has been afforded two VA audiology examinations during the period on appeal, in June 2015 and December 2021. At the June 2015 examination, the Veteran's auditory thresholds were not greater than 26 decibels at any of the listed frequencies in either ear. Speech recognition for both ears was 96 percent. At the December 2021 examination, once again, the Veteran's auditory thresholds were not greater than 26 decibels at any of the listed frequencies in either ear. Speech recognition for both ears was 100 percent. Thus, a bilateral hearing loss disability was not shown, as defined by VA regulation pursuant to 38 C.F.R. § 3.385, at either VA examination of record. However, the Board notes that the Veteran submitted the results of a June 2015 private audiogram conducted by an audiologist at Lakeshore Ear, Nose, and Throat Center. While the report does not include the puretone thresholds in numerical format, the graphical representation appears to indicate the presence of a possible bilateral hearing loss disability. Notably, the report records word recognition results, however, it is unclear whether the Maryland CNC speech discrimination test was used. It is also unclear if the audiological examination was conducted by a state-licensed audiologist, as is required under 38 C.F.R. § 4.85. In Savage v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in some circumstances, VA has a duty to return for clarification unclear or insufficient private examination reports or progress notes, or the Board must explain why such clarification is not necessary. Savage, 24 Vet. App. 259, 270 (2011). Additionally, the Court specifically named unclear application of the Maryland CNC test as a circumstance warranting remand. Id. In light of the foregoing, the Board finds that remand is required to obtain clarification regarding the June 2015 private audiological report. The Board further notes that the etiology of any bilateral hearing loss disability diagnosed during the pendency of the claim, even if not currently present or deemed resolved, must be addressed prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, on remand, an etiology opinion must be obtained from a VA audiologist. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 authorizing the release of all audiology records from Lakeshore Ear, Nose, and Throat Center. Make two requests for the authorized records, to include the June 2015 puretone threshold results in numerical format and speech discrimination scores, indicating the type of test used (i.e. Maryland CNC), unless it is clear after the first request that a second request would be futile. Additionally, to the extent possible, undertake all appropriate efforts to determine whether the audiologist who performed the June 2015 private audiogram is a state-licensed audiologist and whether the Maryland CNC protocol was used to determine speech discrimination scores. 2. Then, return the claims file to the VA audiologist who conducted the December 2021 VA audiology examination and obtain a medical opinion concerning the nature and etiology of any bilateral hearing loss disability diagnosed during the pendency of the appeal. The examiner must review the Veteran's entire claims file, to specifically include the results of the June 2015 VA audiology examination; the June 2015 private audiology examination at Lakeshore Ear, Nose, and Throat Center; and the December 2021 VA audiology examination. Thereafter, the examiner should state whether or not the June 2015 private audiometric findings are valid for establishing the presence of a current disability pursuant to 38 C.F.R. § 3.385, and thoroughly explain the basis for this finding. If the June 2015 private audiometric findings are valid, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss was incurred in or caused by an in-service injury, event, or illness? A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. The examiner is reminded that an opinion based solely a lack of hearing loss in service and the time between separation from service and onset of hearing loss will be deemed inadequate. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.