Citation Nr: 21075538
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 18-08 033
DATE: December 20, 2021

REMANDED

Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from October 1966 to July 1968.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).  

In November 2020, the Veteran testified at a virtual hearing before the undersigned.  In February 2021, the Board remanded this matter to the AOJ for additional development, to include securing the Veteran's VA and private medical treatment records and obtaining an updated VA medical examination.  In a July 2021 rating decision, the AOJ increased the Veteran's hearing loss rating to 40 percent over the entire appeal period, utilizing the results of a March 2016 VA examination.

Due to circumstances unique to this case, the Board find that good cause exists to justify the Veteran's failure to report for his scheduled examination in July 2021. Specifically, when the AOJ initially tried to schedule an examination in February 2021, the Veteran notified the AOJ that he was in England and unable to return to the United States due to travel restrictions associated with the coronavirus disease (COVID-19) pandemic (hereafter pandemic).  See February 2021 VA Form 21-0820, Report of General Information.  In July 2021, upon receiving a phone call in reference to attending a VA examination, the Veteran notified the AOJ that he could not return from England until, "possibly early September 2021."  See July 2021 VA Form 27-0820.  The AOJ then made several additional attempts to contact the Veteran by mail and telephone, most recently on September 2, 2021.  The Veteran did not respond to these attempts, and the AOJ issued a Supplemental Statement of the Case (SSOC) in October 2021, after which the case was returned to the Board.  See October 2021 SSOC.   

The Board finds that, given the pandemic and associated travel restrictions and the Veteran's report that he would not be able to attend an examination due to the same until early September 2021, good cause exists to justify the Veteran's failure to report for his most recent scheduled examination, and he should be re-scheduled for an examination on remand.  See 38 C.F.R. § 3.655(a) (providing a non-exclusive list of examples which may constitute good cause, including illness or hospitalization of the claimant and death of an immediate family member). Any additional outstanding records should also be secured, and clarification should be sought as to whether the private April 2021 audiologist employed the Maryland CNC speech discrimination test in testing the Veteran's hearing impairment, as required by regulation.  38 C.F.R. § 4.85(a); Savage v. Shinseki, 24 Vet. App. 259 (2011).

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records.

2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.

3. Contact the Veteran's private audiologist (Boots Hearingcare) and clarify whether the Maryland CNC speech discrimination test was used in the April 2021 audiological evaluation. See Medical Treatment Record  Non-Government Facility - Received April 29, 2021.

4. Then schedule the Veteran for a VA examination to assess the current severity of his hearing loss.  All findings should be reported in detail, to include any associated functional impact.  

5. When readjudicating the claim, consider whether the Veteran is entitled to a higher rating based on application of the regulations in effect as of his 1968 date of claim.  

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Saumur, 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.