Citation Nr: 21008175 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-11 717 DATE: February 11, 2021 REMANDED Entitlement to an effective date earlier than August 30, 2016 for left ear hearing loss is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an eye disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to August 1976 and from January 1991 to June 1991. He had inactive duty for training (INACDUTRA) from August 1976 to January 1991 and from June 1991 to May 1996. In January 2017, the Board remanded these issues for additional development. In September 2019, the Board, remanded the issue of entitlement to service connection for an eye disorder and denied the issues of entitlement to an effective date earlier than August 30, 2016 for left ear hearing loss, entitlement to a compensable rating for left ear hearing loss, entitlement to service connection for right ear hearing loss, entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and entitlement to service connection for sleep apnea. The Veteran appealed the September 2019 Board decision denying the issues of entitlement to an effective date earlier than August 30, 2016 for left ear hearing loss, entitlement to a compensable rating for left ear hearing loss, entitlement to service connection for right ear hearing loss, entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and entitlement to service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Court issued an Order that vacated and remanded the claims of entitlement to an effective date earlier than August 30, 2016 for left ear hearing loss, entitlement to a compensable rating for left ear hearing loss, entitlement to service connection for right ear hearing loss, entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and entitlement to service connection for sleep apnea to the Board for further development. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. As noted by the September 2020 JMR, the Veteran in August 2012 notified VA that there were additional outstanding VA medical records at the VAMC in Wilmington, Delaware, specifically at the Dover Clinic. However, there was no indication in the record that VA made any attempt to obtain these records and there was no formal finding within the record that the VAMC records did not exist or that further attempts to locate them would be futile. The Board notes that since the September 2019 Board decision, additional VA treatment records from the San Juan, Puerto Rico VA Medical Centers (VAMC) from February 26, 2009 to June 20, 2020 have been associated with the claims file. However, no additional records from the Wilmington, Delaware VAMC have been added to the claims file. Therefore, it appears that additional records pertaining to the Veteran’s claimed disabilities may exist. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the Secretary, and must be considered if the material could be determinative of the claim). Accordingly, per the September 2020 JMPR instructions, additional development is necessary in order to obtain any outstanding medical records pertaining to the Veteran’s claimed disabilities on appeal. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records, to specifically include treatment from the Wilmington, Delaware VAMC, specifically at the Dover Clinic. If these documents do not exist or are not available, or further attempts to secure them would be futile, a negative response to that effect is required from the appropriate location(s), and a formal finding of unavailability must be made and associated with the record. The Veteran should be accorded the opportunity to furnish such records directly to VA. 38 C.F.R. § 3.159 (e) (2020). 2. After completion of the above and any additional development deemed necessary, the issue son appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.