Citation Nr: 21069168 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-11 633 DATE: November 17, 2021 REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to a compensable rating for service-connected migraines is remanded. Entitlement to a compensable rating for service-connected traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1963 to July 1967. In a February 2020 rating decision, the Veteran was granted service connection for pulmonary fibrosis, effective January 31, 2018. As the February 2020 rating decision represents a full grant of the benefits sought with respect to this claim, entitlement to service connection for pulmonary fibrosis is no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also notes that additional medical records were submitted since the Veteran's February 2020 SOC and have not been considered by the Agency of Original Jurisdiction (AOJ). In a November 2021 Correspondence, the Veteran waived his right to have the case remanded to the AOJ for review of the additional evidence submitted. Therefore, the Board will proceed with adjudication of the claims. 1. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. 2. Entitlement to a compensable rating for service-connected migraines is remanded. 3. Entitlement to a compensable rating for service-connected TBI is remanded. 4. Entitlement to service connection for a back condition is remanded. At the Veteran's February 2021 hearing, he stated that he sought treatment for his bilateral hearing loss and back claims from a private medical provider prior to 2003. The duty to assist requires that the Secretary make reasonable efforts to obtain private records adequately identified by the claimant and relevant to his claim. See 38 U.S.C. § 5103A(b)(1); Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010). Therefore, the matters should be remanded for additional development. Regarding the Veteran's increased rating claims for bilateral hearing loss, TBI, and migraines, the Veteran was last afforded examinations in 2018. Additionally, the Veteran's February 2021 hearing testimony suggests that his symptoms may have worsened since his last examinations. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, the Board finds that the Veteran should be afforded examinations to assess the current severity of his service-connected bilateral hearing loss, TBI and migraine disabilities. The Board next notes that the Veteran has claimed VA treatment in Houston since 1994. The AOJ indicated that CAPRI lists an enrollment date of January 2003 but only has electronic records since August 2003. Based on this information, the AOJ indicated that it could be reasonably construed that older paper records do not exist. The Board finds that VA treatment records since 1994 should be requested. Lastly, regarding the Veteran's claim for entitlement to service connection for a back condition, the Veteran was afforded a VA examination in October 2018. The examiner opined that the Veteran's back condition is less likely than not related to service. The examiner reasoned the following: "I did not find records suggesting lumbar pain or treatment for lumbar problems during Veteran's time in service." The Board defers consideration of an additional examination pending the receipt of reportedly missing treatment records. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by VA when requesting opinions and making credibility determinations with an undeveloped record, and recognizing that fact-finding is a responsibility that is ultimately committed to the Board and not a medical examiner). The matters are REMANDED for the following action: 1. Obtain outstanding private records prior to 2003 and associate them with the claims folder. Specifically, instruct the Veteran to complete a VA Form 21-4142, Authorization to Disclose Information to VA, for private treatment records related to his claims. 2. Associate all paper and electronic VA treatment records since 1994, including any paper records from the Houston VA Health Care System since 1994. 3. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the actions, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI and migraines. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. 5. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond and return the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.