Citation Nr: 21066687 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-20 032 DATE: November 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 23, 2020, and in excess of 40 percent thereafter, for service-connected bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1966 to August 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in June 2019 and February 2021. Entitlement to an initial rating in excess of 10 percent prior to January 23, 2020, and in excess of 40 percent thereafter, for service-connected bilateral hearing loss, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of two prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the February 2021 remand directives. See Stegall v. West, 11 Vet. App. 258, 271 (1998). Specifically, in February 2021, the Board instructed the AOJ to obtain any outstanding treatment records, whether VA or private, including the results of audiological evaluations conducted at Tucson VA Medical Center (VAMC) in December 2013, March 2018, and February 2019. While audiological progress notes from these evaluations have been associated with the claims file, and such notes contain summaries of the evaluations, the actual results of the evaluations have not been associated with the claims file. See Tucson VAMC records, received July 2021 in CAPRI. Additionally, the Board notes that the Veteran submitted an authorization for release of medical records from Yuma Regional Medical Center. See February 2021 VA Form 21-4142. However, the AOJ did not act on the release because there was no valid signature. See February 2021 VA Correspondence. There is no indication that the AOJ attempted to secure a valid signature from the Veteran or notify him of the discrepancy. Moreover, neither the results of the VA audiological evaluations nor the private treatment records have been obtained and there is no indication that the Veteran was informed that such records could not be secured as required by 38 C.F.R. § 3.159(e). As the Board cannot find substantial compliance with the February 2021 remand directives, a remand is necessary to allow the AOJ to obtain outstanding VA and private treatment records. Lastly, the Board notes that VA examinations were conducted in January 2020 and May 2021. See January 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ); May 2021 VA Hearing Loss and Tinnitus DBQ. However, as discussed above, potentially relevant medical records may not have been associated with the claims file. As such, if any additional relevant medical records are associated with the claims file, the Veteran should be afforded a new examination regarding the nature and severity of his service-connected bilateral hearing loss. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 120, 123 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent treatment records, whether VA or private, to include records relating to treatment at Yuma Regional Medical Center, as well as the audiometric results of audiological evaluations conducted at Tucson VAMC in December 2013, March 2018, and February 2019 and all records contained within the VISTA Imaging System. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, IF AND ONLY IF PERTINENT MEDICAL RECORDS ARE ASSOCIATED WITH THE CLAIMS FILE, schedule the Veteran for an examination regarding the severity of his service-connected bilateral hearing loss. All relevant evidence regarding the history of the disability must be made available to the examiner in conjunction with the examination. Pathology, symptoms (frequency, severity, and duration), and all associated impairment of daily and occupational functioning should be described in detail. The examiner is asked to: (a.) Conduct appropriate audiometric and speech discrimination testing in conformity with the requirements of 38 C.F.R. § 4.85. (b.) Provide numeric interpretation of any hearing tests/audiograms conducted, setting forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. The examiner is also asked to provide the average pure tone threshold for these four frequencies. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.