Citation Nr: 21063911
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 17-26 852
DATE: October 18, 2021

REMANDED

Entitlement to service connection for right ear hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 1969 to September 1971, including service in direct support of combat operations in the Republic of Vietnam.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which in relevant part, denied service connection for bilateral hearing loss and tinnitus.

In December 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  The hearing transcript is now of record. 

In December 2019, the Board awarded service connection for left ear hearing loss and tinnitus.  It remanded service connection for right ear hearing loss for additional development.  

Entitlement to service connection for right ear hearing loss is remanded.

Although the Board regrets the delay, additional development is necessary to comply with the December 2019 Board remand and VA's duty to assist in obtaining medical records. 

In December 2019, the Board remanded this claim to obtain a complete copy of the February 1, 2013 audiogram and any associated speech recognitions tests performed in connection with the February 2013 VA audiologic clinic consultation.  The purpose of the remand was to ensure that all audiograms were of record in determining whether the Veteran had right hearing ear loss for VA compensation purposes.  38 C.F.R. § 3.385.  

In July 2020, the AOJ obtained a duplicative copy of the February 1, 2013 VA audiology clinic records.  The duplicative copy again simply referenced an audiogram being found in the "ROES 3" or "Tools" then "Audiogram Display."  There has not been substantial compliance with the remand instructions and corrective action is needed as explained below.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  

Then, updated VA treatment records include a March 2, 2016 audiology clinic consultation.  It also references an audiogram being taken with a complete copy being available in "Audiogram Display under 'Tools.'"  An additional search request is needed to obtain a complete copy of the March 2, 2016 VA audiogram as well.  38 C.F.R. §§ 3.159(c)(2), 3.385.  

The matter is REMANDED for the following action:

1.  Obtain a complete copy of the audiograms performed in connection with the February 1, 2013 and March 2, 2016 VA audiology clinic consultations.  These audiograms apparently can be found in the Tools menu of (Computerized Patient Record System) CPRS, under "Audiogram Display."

If either of the February 2013 and March 2016 audiograms cannot be located or is found not to exist, obtain a response from the VA medical facility confirming that such audiogram do not exist and prepare a memorandum to the file.

If the Board is in error that the document is not currently in the electronic claims file, it apologizes for the error and requests that the agency of original jurisdiction prepare a memorandum to the file indicating the location of the document.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. D. Simpson, 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.