Citation Nr: 21069784 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 10-02 199 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for post-operative right ankle instability is remanded. Entitlement to a rating in excess of 10 percent for left ankle degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right hip degenerative joint is remanded. Entitlement to a rating in excess of 10 percent for left hip degenerative joint is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from March 1972 to November 1988 and from March 1992 to August 1993. These matters come before the Board on appeal of rating decisions issued in October 2007 and November 2009. In August 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2017, the Veteran, through his representative, requested another hearing before the Board. However, in March 2018, the Veteran, again through his representative, indicated that he wished to withdraw the pending hearing request. A request for hearing may be withdrawn by an appellant at any time before the hearing. 38 C.F.R. § 20.704(e). Therefore, the Board finds that the request for a second Board hearing has been withdrawn, and will proceed with appellate review. The Board remanded this case in February 2013, July 2014, July 2019, and August 2021. 1. Entitlement to a rating in excess of 10 percent for post-operative right ankle instability is remanded. 2. Entitlement to a rating in excess of 10 percent for left ankle degenerative arthritis is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. 4. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease is remanded. 5. Entitlement to a rating in excess of 10 percent for right hip degenerative joint is remanded. 6. Entitlement to a rating in excess of 10 percent for left hip degenerative joint is remanded. The Board finds that a remand is required as to the appeals for higher ratings for the service-connected ankle, knee, and hip disabilities because there has not been substantial compliance with the August 2021 Board remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Specifically, the August 2021 remand found that the issues needed to be remanded so that the agency of original jurisdiction (AOJ) could review and consider in the first instance private examination reports submitted by the Veteran's representative in December 2020. The remand therefore directed the AOJ to "review the expanded record, including the private examinations submitted by the Veteran's representative in December 2020", and "[i]f any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case." The AOJ issued a supplemental statement of the case in October 2021 readjudicating the appeal. That supplemental statement of the case does not list in its "Evidence" section the private examinations submitted by the representative in December 2020. It also does not discuss those examinations in its "Reasons and Bases" section. Thus, the record does not show that the AOJ completed the actions directed in the August 2021 remand because there is no indication that it reviewed the private examinations submitted in December 2020 in rendering its decisions in the October 2021 supplemental statement of the case. 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Board finds that a remand is required as to the appeal for a compensable rating for bilateral hearing loss because there has not been substantial compliance with the August 2021 Board remand. See 38 U.S.C. § 5103A(b); Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. 105. Specifically, the August 2021 remand noted that the VA treatment records show audiograms obtained in July 2014 and September 2017 are available under the Computerized Patient Record System (CPRS). However, those audiograms were not of record. The remand therefore directed the AOJ to "[a]ssociate with the record copies of the audiograms obtained at VA medical facilities in July 2014, September 2017, and any other time during the relevant rating period", and "[i]f any such records ... cannot be obtained because they do not exist or further efforts to obtain them would be futile, then the Veteran should be notified of such in a manner consistent with 38 C.F.R. § 3.159(e)." On remand, the AOJ obtained updated VA treatment records and reuploaded the VA treatment notes referencing the July 2014 and September 2017 audiograms. However, the July 2014 and September 2017 audiograms have not been associated with the record. Moreover, there is no indication that the AOJ attempted to obtain those audiograms by accessing the appropriate repository, to include CPRS, or that the AOJ informed the Veteran of its inability to obtain the audiograms, as directed in the remand. The matters are REMANDED for the following action: 1. Associate with the record copies of the audiograms obtained at VA medical facilities in July 2014, September 2017, and any other time during the relevant rating period. The instructions given in the July 2014 VA treatment note for accessing the July 2014 audiogram are "View Audiogram form 10-2364 in CPRS 'Tools'>> 'Audiogram Display' menu." The instructions given in the September 2017 VA treatment note for accessing the September 2017 audiogram are "See Audiogram display module under Tools menu for full audiometry results." Efforts to obtain the July 2014 and September 2017 audiograms must continue until it is determined that the records sought do not exist or that further efforts to obtain those records would be futile. Document all requests for information as well as all responses in the claims file. If the July 2014 and/or September 2017 audiogram cannot be obtained, then notify the Veteran of such in a manner consistent with 38 C.F.R. § 3.159(e). 2. After completion of the above, review the expanded record, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The supplemental statement of the case must explicitly consider the private examinations that were dated in November 2020; completed by J. Guinto, D.C.; and submitted by the Veteran's representative in December 2020, as well as any additional audiograms obtained. A reasonable period should be allowed for response before the appeal is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.