Citation Nr: 21062686 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-14 929 DATE: October 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 to August 1958. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In January 2020, the Board remanded the claims for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Lastly, in remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss disability is remanded. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In January 2020, the Board remanded this matter for a new VA examination to ascertain the current severity of the Veteran's service-connected bilateral hearing loss disability. He was accorded the requested VA examination in February 2020. However, the Board finds this examination to be inadequate, as there has not been substantial compliance with the January 2020 Board remand directives. Stegall, 11 Vet. App. at 271. The examiner indicated that audiometric results were not reliable due to inconsistent responses, and thus, not valid for rating purposes. The examiner did provide speech recognition scores, however, the examiner found that the use of word recognition scores was not appropriate and reliable for the Veteran because of inconsistent responses. The report of examination, lastly, reveals that the examiner did however recommend retesting at another facility. As such, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his service-connected bilateral hearing loss disability and to ensure that, if the required frequencies cannot be tested, a complete explanation must be given as to why. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. 5. Entitlement to service connection for diabetes mellitus, type II, is remanded. Issues 2-5. The Veteran, and his representative, contends that his disabilities had their onset during, or stem from, service. For reasons explained below, the Board finds that remand is necessary. First, the Board observes that the record indicates that there may be outstanding relevant VA treatment records. In this regard, at the Board hearing, the Veteran indicated that he first started receiving VA treatment for his disabilities in 2012 at VA medical center (VAMC) Durham. See Hearing Transcript 4, 11 (November 2019). However, in this instance, the record does not reveal that the agency of original jurisdiction has obtained the Veteran's complete VA treatment records; indeed, the record reflects VA treatment records from VAMC Durham from 2015, but not from 2012. As any complaints or treatment with VA is relevant, remand is necessary to associate any outstanding VA treatment records with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Next, the record reflects that there are also outstanding non-VA treatment records for the Veteran's disabilities. The Board notes that, in November 2020, the Veteran testified that he received yearly physicals from his past employer, Precision Fabric. A review of the record reveals that in July 2021, the Veteran submitted VA Form 21-4142; the form, however, was rejected because it was incomplete. The Veteran, and his representative, was notified to submit VA Form 21-4142a, identifying providers, dates and locations for where VA is to obtain his medical records. See Subsequent Development Letter (July 2021). To date, neither the Veteran nor the representative has returned an authorization to obtain this relevant evidence. Similarly, the Veteran acknowledged in a Report of General Information that VA had asked for Pleasant Garden Family Medicine records and indicated that he provided records on December 3, 2019. However, a review of the record discloses that the December 3, 2019, letter from Pleasant Garden Family Medicine was not accompanied by the treatment records. Hence, because remand is otherwise necessary as explained above, the Board finds that the Veteran should be afforded another opportunity to assist in the development of his claims by providing authorization for release of his private treatment records. Although VA has a duty to assist the Veteran in substantiating his claim, the duty is not a one-way street and claimants are expected to cooperate in the development of their claims. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Thus, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claims at this juncture is unreasonable given the appearance of an inadequate and incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and treatment of his hearing loss disability, bilateral knee disability, lumbar spine disability, and diabetes mellitus, to include from Precision Fabric, Pleasant Garden Family Medicine, and Dr. W.E. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records to the Present, to include VA treatment records from VAMC Durham prior to February 2015. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. NOTE: If the required frequencies cannot be tested, a complete explanation must be given as to why. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.