Citation Nr: 21071315
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 12-19 594
DATE: November 30, 2021

REMANDED

Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, prior to January 9, 2010 is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1971 to February 1973.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran testified at a hearing held before the undersigned Veterans Law Judge in December 2015.

The Board remanded these matters in April 2016, February 2018, October 2018 and in April 2021 for additional development.

1. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded.

In the April 2021 remand, the Board instructed the RO to obtain audiograms associated with VA treatment records from July 9, 2010, May 13, 2012, September 16, 2014, and July 11, 2016.  

The July 2010 and July 2016 audiograms were obtained, but the SSOC states the September 2014 audiogram "noted normal hearing sloping to moderate hearing loss in both ears."  The Board notes that this is almost a direct quote, save for the word "sensorineural" from the September 16, 2014 VA treatment record and that the audiogram associated with the treatment record has in fact not been uploaded to the claims file.

The Board errs when it fails to ensure substantial compliance with a Board remand.  See, Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate.  Stegall, 11 Vet. App. at 271.

In addition to the above, a December 11, 2013 VA treatment record references an audiogram that has not been associated with the claims file.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, to include on an extraschedular basis, prior to January 9, 2010 is remanded.

Finally, because a decision on the remanded issue of an initial compensable rating for bilateral hearing loss could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined, and a remand is required.

The matters are REMANDED for the following action:

Obtain outstanding audiograms for VA treatment records dated December 11, 2013, and September 16, 2014.  

Document all efforts to obtain such audiograms, as well as any negative replies.

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Keeley, Brian

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.