Citation Nr: 21003190
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 14-20 499
DATE: January 19, 2021

REMANDED

Entitlement to an initial compensable disability rating for service-connected bilateral sensorineural hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1968 to December 1969. 

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico.

In a February 2019 decision, the Board denied the Veteran’s claim.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2020 Court order, the February 2019 decision was vacated and remanded for readjudication pursuant to a February 2020 Joint Motion for Remand (JMR).  

In a June 2020 decision, the Board remanded this issue for additional development.  Unfortunately, there has not been substantial compliance with the Board’s previous remand directive.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to an initial compensable disability rating for service-connected bilateral sensorineural hearing loss is remanded.

The Veteran is seeking a higher disability rating for his service-connected hearing loss.  Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. 

As noted above, in a June 2020 decision, the Board remanded this issue for additional development.  The Board noted that the evidence of record indicates there may be outstanding relevant VA treatment records.  See February 2020 JMR. Specifically, a July 2011 VA treatment note indicates that non-VA audiology records had been scanned into VistA Imaging and had not yet been associated with the claims file.  

On remand, in June 2020, the RO issued a development letter to the Veteran.  It does not appear, however, that the above referenced record has been associated with the claims file.  Thus, a remand to obtain the records is required.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim).

The matter is REMANDED for the following action:

1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran.  All obtained records should be associated with the evidentiary record.

In doing so, the AOJ should specifically attempt to associate the July 2011 non-VA audiology records scanned into VistA Imaging with the claims file.  See San Juan July 2011 VA Treatment Note (Fee Basis Audiology Consult/Entry Date October 14, 2011 at 13:20:56).

2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Kaufer, 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.