Citation Nr: 21005077 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-09 196 DATE: January 28, 2021 REMANDED Entitlement to initial ratings in excess of 30 percent disabling for service-connected bilateral hearing loss prior to August 21, 2015, in excess of 40 percent from April 21, 2015 to September 16, 2019, and in excess of 50 percent from November 1, 2020, to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1969 to April 1972. In March 2016, January 2018, and March 2020, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its prior remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Unfortunately, despite this compliance, the Board finds that for the reasons further discussed below, an additional remand is necessary. The Board notes that in May 2018, during the pendency of the aforementioned development directed by the January 2018 Remand, the Veteran submitted a RAMP opt-in form requesting supplemental lane review under the new Appeals Modernization Act (AMA). Thereafter, the RO issued a supplemental statement of the case (SSOC) readjudicating all evidence associated with the record since the January 2018 Board remand. In light of the above, the Board finds that the Veteran is not prejudiced by the continuation of his appeal under the Legacy system. In this regard, the November 2019 SSOC, which implicitly denied the Veteran’s May 2018 RAMP opt-in request for supplemental lane review, considered all materials added since the January 2018 Board remand, which, similarly, would have been considered under the supplemental lane review. Moreover, the Veteran is at liberty to elect to opt-in to the AMA system should his claim remain denied following completion of the below remand directives. In an October 2019 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran’s bilateral hearing loss to 100 percent effective September 16, 2019, including entitlement to special monthly compensation based on loss of use of hearing. As the AOJ assigned the maximum disability rating possible for only a portion of the period on appeal, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). However, in a June 2020 rating decision, the AOJ found that a clear and unmistakable error had occurred (the examination used to justify the increase noted that speech recognition, the basis for the increase, was not appropriate for the Veteran) and proposed to reduce the Veteran’s rating from 100 percent to 50 percent. In an August 2020 rating decision, the AOJ implemented the reduction from 100 percent to 50 percent effective November 1, 2020. As the Veteran has not expressed a disagreement with the propriety of the reduction, such is not before the Board. Furthermore, as the reduction kept in place the maximum schedular rating for the period from September 16, 2019 to November 1, 2020, an increase for such is also not before the Board. However, the remaining appeal periods as well as entitlement to an extraschedular rating for the entire appeal period, remain on appeal. Entitlement to initial ratings in excess of 30 percent disabling for service-connected bilateral hearing loss prior to August 21, 2015, in excess of 40 percent from April 21, 2015 to September 16, 2019, and in excess of 50 percent from November 1, 2020, to include on an extraschedular basis is remanded. Although the Board regrets the delay, a remand is necessary 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. Relevant to the Veteran’s claim for higher initial ratings for his service-connected bilateral hearing loss, the Court has held that, where the record does not adequately reveal the current state of a claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran’s claim for higher initial ratings for his service-connected bilateral hearing loss must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability. In this regard, the record reflects that the Veteran was most recently afforded a VA examination for such condition in September 2019. Since that time, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms and the degenerative nature of the Veteran’s disability, as well as the amount of time which has passed since the Veteran’s prior examination, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA audiological examination to determine the nature and severity of his service-connected bilateral hearing loss. The examiner is asked to address: The examiner should identify the nature and severity of all manifestations of the Veteran’s bilateral hearing loss. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s bilateral hearing loss on his daily activities and employability. In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements. The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.