Citation Nr: 21064728 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-37 778 DATE: October 21, 2021 REMANDED Entitlement to an increased rating for service-connected bilateral hearing loss is remanded. REASONS FOR REMAND This appeal arises from a claim submitted by the Veteran in June 2015 in which he requested an increased rating for service-connected bilateral hearing loss and entitlement to service connection for migraine headaches and vertigo. In the October 2015 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) continued the 10 percent rating assigned for bilateral hearing loss and denied the service connection claims, after which the Veteran perfected an appeal for each issue. During the pendency of the claim, the AOJ awarded an increased, 50 percent rating for bilateral hearing loss, effective June 22, 2015. See June 2018 rating decision. The Veteran was notified of the AOJ's determination in July 2018, but he did not withdraw his appeal. Therefore, the appeal for the increased rating claim continues. See AB v. Brown, 6 Vet. App. 35 (1993). In this context, the Board notes that the appeal period for the increased rating claim is from June 22, 2014, which includes the one-year looks back period prior to the date of receipt of the increased rating claim. 38 C.F.R. 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In May 2021, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. Thereafter, in July 2021, the Board remanded the increased rating and service connection claims for additional evidentiary development. With respect to the increased rating claim for bilateral hearing loss, the Board directed the AOJ to obtain all outstanding VA treatment records, specifically including audiologic test results conducted during VA outpatient treatment on March 18, 2015, May 24, 2015, and October 28, 2015. The record reflects that VA treatment records dated from March 2017 to July 2021 were associated with the claims file; however, the audiograms conducted in 2015 have not been associated with the claims file and there is no indication that any efforts were made to obtain this evidence or that the audiograms are not available. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that, in September 2021, the AOJ also granted service connection for Meniere's disease and assigned a 100 percent rating, effective June 22, 2015. The AOJ specifically noted that the 100 percent rating encompassed the Veteran's vertigo, hearing loss, and tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code 6205. The 100 percent rating assigned from June 22, 2015 for the Veteran's Meniere's disease with vertigo, hearing loss, and tinnitus appears to be the most favorable outcome and rating for the Veteran from that date, as separate ratings for vertigo, hearing loss, and tinnitus would result in lower ratings, even when combined. See 38 C.F.R. §§ 4.25; 4.86, DC 6100; 4.87, DCs 6204, 6260. Nevertheless, because the appeal period for the increased rating claim begins on June 22, 2014, the outstanding audiograms conducted in March, May, and October 2015 are relevant to the appeal and may contain evidence that supports a rating in excess of 50 percent prior to June 22, 2015 when the 100 percent rating is assigned. Therefore, an additional remand is required to obtain the outstanding audiograms, if available. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). On remand, VA should also obtain clarification regarding the type of test used to evaluate the Veteran's word recognition during the evaluations. See e.g., Savage v. Shinseki, 24 Vet. App. 259 (2011). The matters are REMANDED for the following action: Obtain the specific clinical findings from the VA audiological evaluations conducted at the Harlingen Outpatient Clinic on March 18, 2015, May 23, 2015, and October 28, 2015. The findings should include the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, and clarify whether the Veteran's speech recognition tests were measured using the Maryland CNC test. Note: it may be necessary to contact the VA medical facility directly to obtain copies of the test results or through VISTA Imaging. All efforts to obtain such records should be documented in the claims folder. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.