Citation Nr: 21077243 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-59 205 DATE: December 29, 2021 REMANDED The claim for a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1965 until his honorable discharge in December 1965, and again from January 1968 until his honorable discharge in June 1969. 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 November 2015 rating decision by the Phoenix, Arizona, Regional Office of the United States Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a videoconference Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. Unfortunately, portions of the audio recording were unable to be transcribed. The Veteran was offered the opportunity to have a second hearing, which he accepted. In October 2020, the Veteran testified before the undersigned VLJ at a videoconference hearing. In a March 2015 decision, the Board remanded the claim for a compensable disability rating for service-connected bilateral hearing loss to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to attempt to obtain private audiologic records identified by the Veteran during his Board hearing and to obtain an updated VA examination assessing the severity of his bilateral hearing loss. The Board 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). The VA Regional Office obtained an updated VA examination addressing the Veteran's bilateral hearing loss. The Veteran also submitted private medical records that included two audiologic examinations occurring in January 2018 and October 2020. Notably, the VA Regional Office issued a supplemental statement of the case on July 2, 2021, and did not include the private medical records, to include the private audiologic examinations, as part of the evidence received and considered within that adjudication. Moreover, the VA Regional Office provided no discussion or acknowledgment of the relevant records within the body of the decision portion of the supplemental statement of the case. Because the Veteran submitted this evidence while the case was pending before the VA Regional Office on remand, not at the Board, the Board finds the Veteran is entitled to have the VA Regional Office address this evidence in the first instance as he has not waived such consideration. See 38 C.F.R. §§ 19.31(b)(2) and (3), (c); 19.37(b); 20.1305(c). Second, the VA Regional Office obtained updated VA medical records and associated them with the Veteran's claims file. On April 13, 2021, the Veteran received a VA audiologic examination. The examiner documented hearing loss, but the full results are not available in the Veteran's VA medical records. To comply with VA's duty to assist, remand is required to obtain the full audiologic test results as VA is in constructive possession of those records. 38 U.S.C. § 5103A(a)(1); see also 38 C.F.R. § 3.159(c). 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. (Continued on the next page) 2. Contact the VA audiologist (or appropriate agent) who examined the Veteran on April 13, 2021, at the Palo Alto VA Medical Center to obtain the Veteran's FULL audiometric test results, including the audiogram and associated interpretations. Associate all documents received with the Veteran's claims file. Document all steps taken to obtain the audiologic records within the claims file. (Continued on the next page) 3. After any additional record have been associated with the Veteran's file, readjudicate the claim for a compensable disability rating for bilateral hearing loss. The VA Regional Office MUST acknowledge, consider, and discuss the private audiologic examinations conducted in January 2018 and October 2020 as contained within the Veteran's private medical records associated with his claims file on April 29, 2021, within the supplemental statement of the case, in addition to any other relevant evidence. When adjudicating the claim, the VA Regional Office should also acknowledge, consider, and discuss, to the extent relevant, a correspondence received by VA on August 16, 2021, in which the Veteran states, "I was told by a VA advocate that an increase was due on hearing because of pain and discomfort due to tinnitus not from hearing loss. 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.