Citation Nr: 1805192 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-22 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) with the Army National Guard from November 1998 to April 1999, was called to active duty in the Army Reserves from July 2004 to November 2005, and served on active duty with the Army from October 1, 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The rating decision granted service connection for bilateral hearing loss, rated 0 percent effective November 19, 2005. The Veteran filed a Notice of Disagreement (NOD) dated July 30, 2009 and received by VA on August 4, 2009. This appeal followed. A telephone call from the Veteran on January 14, 2011 indicated that he has been on active duty since October 1, 2008. VA accordingly terminated his VA benefits. This case was remanded in August 2013 for additional development. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand is necessary for additional development. It has been noted that the Veteran returned to active duty and that he is no longer receiving VA compensation. However, his appeal is for the evaluation of bilateral hearing loss for the period from November 19, 2005, to October 1, 2008, the date of his reported deployment. The August 2013 Board remand provided: Audiometry on September 2006 VA examination did not show loss of auditory acuity sufficient to warrant a schedular compensable rating. The Veteran alleges worsening since. If he had audiometry performed on entrance examination for his active duty service beginning in October 2008 (as is the general practice), such audiometry (which would be of record) could potentially show loss of hearing to a compensable degree during the evidentiary period (until he returned to active duty). Consequently, the report of that examination must be sought. VA must obtain the Veteran's service medical records (SMRs) if relevant to the claim, and efforts to procure them must continue until the records are received "unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A (c)(2). Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, a remand is necessary to obtain the SMR audiometric results in compliance with the August 2013 remand directives. Here, the August 9, 2017 development letter indicates that the National Personnel Records Center (NPRC) was contacted on July 26, 2006 to obtain the Veteran's STRs. It does not indicate that a new request was made to obtain the Veteran's October 2008 entrance examination. It also does not include sufficient detail surrounding these circumstances to fully comply with the prior remand directives. NPRC may now hold the Veteran's service treatment records if the Veteran was released from active duty or is no longer a member of the National Guard. If the Veteran remains on active duty, his records would likely be held by his current command organization. Therefore, a request to the Adjutant General of the Ohio National Guard is necessary to determine the Veteran's current duty status and if on active duty the identity and location of his current unit. Then, requests for all available service treatment records (active duty, Reserve, or National Guard) since 2005 must be made to his unit and to NPRC. A January 3, 2017 Report of General Information shows that the Veteran was contacted via telephone and his contact information was up to date. Subsequent development letters were sent to the Veteran on January 4, 2017, and August 9, 2017, requesting entrance examinations subsequent to 2006, or any additional audiometry tests that may have been conducted. He responded by telephone only that he had no additional evidence to submit. Accordingly, the case is REMANDED for the following actions: 1. If the Veteran identifies other evidence, obtain any other relevant VA treatment records or private medical records, and associate them with the claims file. 2. The RO should make a new attempt to secure for association all service treatment records since 2005 whether on active duty or Reserve or National Guard duty to include a copy of the report of the Veteran's October 2008 entrance examination (and specifically any audiometric examination results conducted at the time.) Requests must be made to the Adjutant General of the Ohio National Guard, any identified active duty unit, and to NPRC. If such record is unavailable (or if audiometry was not conducted) it should be so noted in the record, with explanation. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).