Citation Nr: 18142645 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-55 142 DATE: October 16, 2018 REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from September 1956 to September 1958. The Board of Veterans’ Appeals (Board) notes that the Veteran also perfected an appeal for entitlement to service connection for tinnitus. During the pendency of the appeal, in July 2018, the local Regional Office (RO) granted service connection for tinnitus, effective as of June 23, 2014. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, this issue is not before the Board. The Board further notes that in his November 2016 substantive appeal (VA Form 9), the Veteran requested a hearing. Accordingly, the Veteran was scheduled for a hearing in September 2018. In August 2018, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. A review of the claims file shows that a supplemental statement of the case (SSOC) regarding the claim on appeal was issued in July 2018. Subsequently, the Veteran was afforded a VA examination to evaluate the severity of his service-connected hearing loss in September 2018, and additional VA treatment records were added to the claims file. There is no SSOC addressing this evidence. A rating decision dated October 2018 was issued instead of a SSOC, as the RO mistakenly treated the Veteran’s claim as a new claim for an increased rating even though his appeal of the November 2015 rating decision was still pending. However, an SSOC must be furnished to the claimant when additional pertinent evidence is received after an SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. Thus, the Board concludes that a remand is necessary for the issuance of an SSOC addressing the Veteran’s claim. The Board recognizes that, although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the issue must be remanded to allow for AOJ consideration of the September 2018 VA examination and the additional VA treatment records. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After completing the indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issue on appeal, the SSOC should consider any new evidence received since the SSOC issued in July 2018. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel