Citation Nr: 21069374 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-01 207 DATE: November 18, 2021 REMANDED The claim for an initial compensable disability rating for bilateral hearing loss prior to February 6, 2019, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1961 until his honorable discharge in February 1962. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a May 2017 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In November 2020, the Board issued a Remand Order directing the VA Regional Office to obtain outstanding VA audiologic test results dated June 5, 2017, as documented in the Veteran's VA medical records. Importantly, the Veteran relies on those test results as part of his appeal, asserting they are adequate to demonstrate entitlement to higher disability ratings. Following the case's return to the Board from the November 2020 Remand Order, the Board issued a June 2021 Remand Order because the VA Regional Office did not substantially comply with the Board's November 2020 remand directives. It did not obtain the June 5, 2017, audiologic test results nor did it make a formal finding of unavailability. Within the June 2021 Remand Order, the Board directed the VA Regional Office to do as follows: Obtain any outstanding VA treatment records related to the Veteran's bilateral hearing loss disability and associate them with the claims file, specifically, the June 5, 2017 audiology diagnostic study. If the June 5, 2017 audiology diagnostic study cannot be located, then contact Dr. S. P., the VA audiologist who conducted the June 5, 2017 audiological examination, and seek to obtain a copy of the Veteran's audiology diagnostic study and results. The case now returns to the Board, however, it finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regrettably, remand is once again required to attempt to obtain the June 5, 2017, audiologic test results. Following the Board's June 2021 Remand Order, the VA Regional office submitted a request to the Houston, Texas, VA Medical Center (Houston VAMC) requesting the June 5, 2017, audiologic test results. VA Form 10-7131, Exchange of Beneficiary Information (associated with the Veteran's claims file on June 30, 2021). The Houston VAMC responded that the records were available through CAPRI ("comprehensive and pension record interchange"). Correspondence associated with the Veteran's claims on file July 30, 2021. The Houston VAMC stated, "It has been confirmed by the VARO [VA Regional Office]) that the electronic records can be uploaded by the VRE and unnecessary for the ROI [(Release of Information] office to print those records." Id. On July 30, 2017, the Houston VAMC uploaded a duplicate copy of the June 5, 2017, VA Audiology Diagnostic Study Note, which did not contain the requested audiologic test results. The VA Regional Office again requested the test results from the Houston VAMC. Correspondence associated with the Veteran's claims file on August 3, 2021. In an email dated September 7, 2021, from an unknown VA representative, it is stated that "the information requested was sent to [you] via email for the [Veteran]. The VAMC state[s] the email was sent on or after September 2, 2021. Please review your email and if the information concerning audio exam reports have been received please upload them into the Veteran's Efile." The next document in the Veteran's electronic claims file is a VA Form 10-7131, Exchange of Beneficiary Information, associated with the file on September 7, 2021. In that document, it states, "Please note: requested audiogram findings are viewable/available electronically under progress notes via VISTA/CAPRI under MED VAMC (Station 580). As a courtesy, associated audiogram has been emailed to assigned VSR [(Veterans Service Representative])." On September 7, 2021, VA associated with the Veteran's claims file duplicate copies of the June 5 and 19, 2017; and July 4, 2017, VA Audiology Diagnostic Study Notes. In addition, there were progress notes, one of which indicates "Jun[e] 5, 2017, AUDIOLOGICAL ASSESSMENT" by Dr. S.P. at Beaumont OPC at the Houston [s]ite." Yet, the June 5, 2017, audiologic results were not included in the documents. The VA Regional Office issued a Supplemental Statement of the Case on September 16, 2021, denying the claim for increased disability ratings. In doing so, it stated, "The June 5, 2017, audiology diagnostic study and results were previously received and considered. Actual audiological testing results are not available for review. All attempts to obtain these records have been futile." The Board finds this statement is inaccurate based on the evidence of record. First, the documents related to the requests for the June 5, 2017, audiologic test results discussed above reasonably suggest the test results are available. VA Form 10-7131, Exchange of Beneficiary Information, associated with the file on September 7, 2021, clearly states that the June 5, 2017, audiogram is viewable/available electronically under progress notes via VISTA/CAPRI under MED VAMC (Station 580). Furthermore, the audiogram was emailed to the assigned VSR. The VA Regional Office has not addressed this factual evidence; that is, whether or not such evidence was accessible via VISTA/CAPRI or received via email. Second, the Board finds no documented evidence that the VA Regional Office followed the Board's June 2021 directive to contact Dr. S.P. to attempt to retrieve the results from her directly. Finally, the VA Regional Office never made a formal finding that the June 5, 2017, audiogram results were unavailable, to include discussing what reasonable steps were taken and why any further steps would be futile. Therefore, the Board finds that there has not been substantial compliance with the Board's November 2020 and June 2021 remand directives. Consistent with VA's duty to assist, 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, remand is required. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Make all necessary and reasonable requests to attempt to obtain the June 5, 2017, VA audiologic test results, to include any audiograms and data reports. All actions taken must be documented. (Continued on the next page) 3. If the June 5, 2017 audiology diagnostic study cannot be located, then contact Dr. S. P., the VA audiologist who conducted the June 5, 2017, examination, and attempt to obtain a copy of the Veteran's full audiologic test results, to include any audiograms and data reports. All actions taken must be documented. Records indicate the examination occurred at Beaumont OPC, Houston site. 4. If the audiologic test results remain unavailable after all reasonable and necessary steps have been taken to obtain them, then the VA Regional Office must issue a formal finding on the matter, discussing what steps were taken and why any further steps would be futile. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.