Citation Nr: 1752362 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-37 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating prior to May 7, 2011, and to an initial rating greater than 10 percent thereafter, for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran had active service from February to July 1985, January 2004 to June 2005, June to October 2007, and April 2013 to October 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted, in pertinent part, the Veteran's claim of service connection for left ear hearing loss, assigning a zero percent (non-compensable) rating effective October 17, 2007. The Veteran disagreed with this decision in April 2009. He perfected a timely appeal in October 2009. In May 2013, May 2016, and April 2017, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. In an April 2014 rating decision, the AOJ assigned an initial 10 percent rating effective May 7, 2011 to the Veteran's service-connected left ear hearing loss. Because the initial rating assigned to the Veteran's service-connected left ear hearing loss is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Unfortunately, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his service-connected left ear hearing loss is more disabling than currently (and initially) evaluated. In its most recent remand in April 2017, the Board directed the AOJ to obtain an updated VA Form 21-4142 from the Veteran for GR Health for the purpose of obtaining complete treatment records from this facility. A review of the record reveals that the Veteran submitted an updated VA Form 21-4142, signed May 16, 2017, along with duplicate copies of audiograms from GR Health (previously submitted by the Veteran in June 2016). However, there is no showing in the record that the RO attempted to obtain complete treatment records from GR Health. The Board observes that compliance with its remand directives is not discretionary. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was an error for the AOJ to re-certify this appeal to the Board in October 2017 without complying with the April 2017 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. The AOJ should review the updated VA Form 21-4142, signed by the Veteran on May 16, 2017, and contact GR Health for the purpose of requesting the Veteran's complete treatment records. All attempts to procure such records must be documented in the file. If no records are available, a negative response must be included in the record. 2. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).