Citation Nr: 21063375
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 19-20 785
DATE: October 14, 2021

REMANDED

Entitlement to a compensable evaluation for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran had active service from January 1979 to January 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA).

This matter, entitlement to a compensable evaluation for bilateral hearing loss, was previously before the Board.  Specifically, in May 2020, the Board denied the claim.  The Veteran appealed the Board's May 2020 denial of the claim to the United States Court of Appeals for Veterans Claims (Court).  In an Order dated in April 2021, the Court granted an April 2021 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board's May 2020 decision, and remanded the case to the Board for readjudication consistent with the JMR.  It now returns for appellate review.

VA correspondence dated May 6, 2021 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court.  No response received by VA from either the Veteran or his representative; however, the 90 day period has elapsed.  Thus, the Board may proceed with appellate review.

1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded.

Additional evidence developed by VA, to include an April 2021 hearing loss and tinnitus disability benefits questionnaire (DBQ), was associated subsequent to the most recent, June 2019 Statement of the Case issued for the appeal herein, after transfer of the appeal to the Board, and after the April 2021 JMR.  Thus, in August 2021, VA sent a letter to the Veteran and his representative inquiring whether they wished to waive AOJ review of this new evidence.  They were informed that if they did not respond within 45 days, VA would assume that they did not waive AOJ review.  No response has been received. In these circumstances, the Board will return the appeal to the AOJ for issuance of a Supplemental Statement of the Case.  38 C.F.R. §§ 19.37(b); 20.1305(c).

Additionally, although the April 2021 JMR, found, in relevant part, remand was warranted for VA to afford the Veteran a contemporaneous examination, as a contemporaneous examination has been obtained in the form of the April 2021 hearing loss and tinnitus DBQ, remand for another examination is not warranted.

 

This matter is REMANDED for the following action:

Readjudicate the issue on appeal with review of all evidence received since the last prior adjudication of the Veteran's claim.  If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Espinoza, 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.