Citation Nr: 20074635 Decision Date: 11/20/20 Archive Date: 11/20/20 DOCKET NO. 07-03 619 DATE: November 20, 2020 REMANDED Entitlement to service connection for bilateral hearing loss, on the basis of substitution, is remanded. Entitlement to service connection for hypertension, on the basis of substitution, is remanded. Entitlement to service connection for a back disability, claimed as spasms, on the basis of substitution, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1953 to March 1955. He died in December 2011. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2009, the Veteran and the appellant testified at a Board video-conference hearing before another Veterans Law Judge, who is no longer employed at the Board. A transcript of that hearing has been associated with the record. This case was previously before the Board in November 2009, January 2011, December 2011, March 2012, April 2018, and August 2019. In November 2009, the Board denied the Veteran’s claims of entitlement to service connection for hypertension and a back disability and remanded his claim for entitlement to service connection for bilateral hearing loss to the agency of original jurisdiction (AOJ) for additional development. In January 2011, the Board again remanded the claim of entitlement to service connection for bilateral hearing loss to the AOJ for further records development. The Veteran appealed the Board’s November 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2011 memorandum decision, the Court vacated the Board’s November 2009 decision denying service connection for hypertension and a back disability and remanded those matters to the Board for further proceedings consistent with its decision. In December 2011, the Board remanded the case for development consistent with the Court’s July 2011 memorandum decision. In March 2012, the claims were dismissed following the Veteran’s death, after which the AOJ approved the appellant as the claimant in substitution of the Veteran. In April 2018 and August 2019, the case was again remanded to the AOJ for additional development. Although the Board sincerely regrets the additional delay, a further remand is necessary to ensure that there is substantial compliance with the Board’s August 2019 remand directives and to afford the appellant every possible consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral hearing loss, on the basis of substitution, is remanded. The Veteran contended that his hearing loss was caused by service. He testified at the September 2009 hearing that he worked at Lockheed Martin after service, and that he got his hearing tested there every year. As an initial matter, the Board notes that the file appears to contain partial records from Lockheed Martin, but none of the records contain any audiograms or audiological evaluations. Inasmuch as the Veteran’s service treatment records (STRs) have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist the appellant in developing her claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). In its August 2019 remand directives, the Board asked the AOJ to inform the appellant that there were no records from Lockheed Martin in the claims file, and to afford her an opportunity to provide an authorization for VA to obtain the records or to provide them herself. It also specifically instructed the AOJ to tell her that if the records were unavailable, a statement from the proper authority at Lockheed Martin to that effect should be obtained. The Board also asked the AOJ to obtain an addendum VA opinion regarding the Veteran’s claim of entitlement to service connection for bilateral hearing loss if, and only if, records from Lockheed Martin contained hearing evaluations. Finally, it ordered the AOJ to obtain addendum VA opinions regarding the Veteran’s claims of entitlement to service connection for hypertension and a back disability. In August 2019, the AOJ sent the appellant a letter regarding the outstanding records from Lockheed Martin. That letter was returned as undeliverable later that same month. The appellant submitted a change of address to VA in January 2020, but the AOJ did not resend the letter to the correct address. The AOJ did obtain addendum opinions as to the Veteran’s claims for service connection for hypertension and a back disability in September 2019. While the Board finds that the AOJ substantially complied with the Board’s August 2019 remand directives regarding obtaining VA opinions, it finds that it did not substantially comply with the requested records development. The evidence indicates that the appellant never received the relevant notification from the AOJ. Because the development sought was not undertaken, and given VA’s heightened duty to assist the appellant in developing her claim, a further remand is required. See Stegall, supra. 2. Entitlement to service connection for hypertension, on the basis of substitution, is remanded. 3. Entitlement to service connection for a back disability, claimed as spasms, on the basis of substitution, is remanded. The Board notes that there may be other outstanding records from private treatment providers that may be pertinent to the issues on appeal. In a September 2012 statement in support of claim, the appellant stated that the Veteran received treatment for his disabilities at Forest Avenue Hospital, Charlton Methodist Hospital, Lancaster Medical Center, Baylor Medical Center of Dallas, Renaissance Hospital of Dallas, Methodist Central of Dallas, and from Drs. O.I., V.L., A.S., and B.K. She also provided an authorization to VA so it could obtain records from these facilities and providers. The Board notes that the claims file appears to contain records only from Charlton Methodist Hospital and Baylor Medical Center, but that it does not contain records from the other facilities and providers identified by the appellant. On remand, efforts should be made to procure any outstanding private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). These matters are REMANDED for the following action: 1. Inform the appellant that there are only partial records from Lockheed Martin in the claims file, and that additional records should be obtained, if available, either by the appellant or by VA with authorization. Ask the appellant to authorize VA to obtain copies of the records of the Veteran’s participation in the hearing conservation program, including the audiograms, during the course of his employment with Lockheed Martin, and provide the appellant with the appropriate authorization form. Notify the appellant that, if she prefers, she may request these records from Lockheed Martin herself. Tell her that, in view of the importance of these records to her claim, if these records are unavailable, a statement from the proper authority at Lockheed Martin to this effect should be obtained. Allow an appropriate period for response and document the claims file accordingly. a) If the appellant provides authorization for VA to obtain the records from Lockheed Martin, request copies of the records of the Veteran’s participation in the hearing conservation program, including the audiograms, during the course of his employment from that organization. All responses must be documented in the claims file. b) If records of hearing evaluations are received from the Veteran’s prior employer, obtain an addendum opinion from an appropriate clinician, who should provide an opinion after reviewing the claims file as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s hearing loss disability is due to in-service noise exposure. The entire claims file must be made available to the clinician. 2. Ask the appellant to identify, and provide appropriate releases for, any private care providers who treated the Veteran for the disabilities on appeal or who may otherwise possess new or additional evidence pertinent to those disabilities, to include the providers identified in the appellant’s September 2012 statement in support of claim (Forest Avenue Hospital, Renaissance Hospital of Dallas, Methodist Central of Dallas, and Dr. A.S. in Dallas, Texas; Lancaster Medical Center in Lancaster, Texas; and Drs. O.I., V.L., and B.K. in Desoto, Texas). If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the appellant and her representative should be notified. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate 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.