Citation Nr: 21009538 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-49 557 DATE: February 22, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for a bilateral hearing loss disability prior to July 27, 2017 is remanded. Entitlement to an evaluation in excess of 90 percent for a bilateral hearing loss disability from July 27, 2017 to November 22, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1953 to February 1955. The Board denied increased ratings issues in a December 2018 decision. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court issued an order granting a February 2020 Joint Motion for Partial Remand (JMPR), remanding the issues to the Board for further action. The Board remanded the Veteran’s claim in August 2020. In a December 2020 decision, the Agency of Original Jurisdiction granted an increased rating to 100 percent and special monthly compensation (SMC) effective November 23, 2020. In subsequent correspondence, the Veteran through his attorney representative, limited his appeal, stating he believed earlier effective dates for his 20 and 90 percent ratings were warranted. See VA Form 9 and accompanying correspondence received January 12, 2021. This is similar to arguments previously advanced. Therefore, when reading his contentions favorably, the Board finds the Veteran is content with his 100 percent and SMC rating from November 23, 2020, and has limited the appeal to the period prior to his 100 percent rating, but has not limited the issues to effective date claims only. In other words, the Veteran’s claim remains an increased ratings claim, for the period prior to November 23, 2020. 1. Entitlement to an evaluation in excess of 20 percent for a bilateral hearing loss disability prior to July 27, 2017 is remanded. 2. Entitlement to an evaluation in excess of 90 percent for a bilateral hearing loss disability from July 27, 2017 to November 22, 2020 is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with our August 2020 remand directives. As part of the August 2020 remand, the Board sought outstanding VA treatment records, to include audiological examination results found in VA’s Computerized Patient Record System (CPRS). However, the Agency of Original Jurisdiction (AOJ) did not obtain the audiological examination results contained within VA’s electronic records system. Instead, the AOJ obtained more copies of medical records that refer to audiological evaluations, but don’t actually contain the results themselves. See, e.g., VA treatment records from May 26, 2011 (stating “SEE SCANNED IMAGE TO VIEW AUDIOGRAM”, but image or specific audiogram results not provided) and December 29, 2015 (“Air Conduction/Bone Conduction Thresholds/Word Recognition Scores: SEE AUDIOGRAM UNDER TOOLS, THEN AUDIOGRAM DISPLAY”). This was not substantial compliance with the Board’s remand directive, as the underlying results are what the Board seeks.   Additionally, the Board directed the AOJ to obtain and add to the claims file information to demonstrate the qualifications of hearing loss compensation and pension examiners that have evaluated the Veteran, such as a curriculum vitae and other credentialing documents. The Veteran also attended examinations in March 2012, November 2013, December 2014, January 2017 and July 2017, prior to the Veteran’s request for information about the examiners in April 2020. The AOJ obtained the resume or curriculum vitae of the July 2017 examiner, but did not obtain relevant documents for any of the other examiners. Only obtaining information related to the July 2017 examiner does not constitute substantial compliance with the remand directive. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the above, remand is warranted to ensure compliance with the Board’s remand directives. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since February 2011, to include audiological examination results found in VA’s Computerized Patient Record System (CPRS), e.g., puretone threshold findings and word recognition scores. This appears to require more than obtaining general medical records. See, e.g., December 29, 2015 treatment record. All efforts to obtain such records should be documented in the claims folder. All new records should be associated with the Veteran’s VA claims file. If the AOJ is unable to obtain the relevant records sought, a memorandum should be added to the record explaining the reason. 2. Obtain and add to the claims file information to demonstrate the qualifications of hearing loss compensation and pension examiners that have evaluated the Veteran during the period on appeal (such as a curriculum vitae and other credentialing documents, which may be redacted as deemed warranted). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.