Citation Nr: 21011665 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-03 675 DATE: March 2, 2021 REMANDED The Veteran’s application to reopen the claim of entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1979 to February 1983. This case is before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office. In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In January 2020, the Board denied the Veteran’s application to reopen service connection claim for a left ear hearing loss disability and entitlement to TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court found that VA’s duty to assist has not been satisfied prior to November 2019 Board decision as VA failed to obtain updated Social Security Administration (SSA) records, VA VISTA records, and VA physical therapy records. The Court also found that the Board provided inadequate statement of reasons or bases to support its decision for the TDIU claim. Accordingly, in an October 2020 order, the Court granted a Joint Motion for Partial Remand and vacated the Board's January 2020 decision and remanded the matters for readjudication. Now the matters are returned to the Board. The Veteran is seeking to reopen the claim of entitlement to service connection for a left ear hearing loss disability and entitlement to TDIU. However, the Board agrees with the Court’s October 2020 JMPR order and finds that the matters should be remanded for further development. As to the reopening of the Veteran’s service connection claim for a left ear hearing loss disability, the May 2018 VA hearing loss and tinnitus examination report indicates that the Veteran underwent an audiometric evaluation on April 10, 2018, which showed bilateral hearing loss with the right ear worse than the left. See also April 20, 2018 Addendum Note (audiogram report of April 10, 2018 was scanned to VISTA). However, the record does not contain VISTA records reflecting the audiometric evaluation of April 10, 2018. As such, the Board finds that reasonable efforts must be made to obtain updated VISTA records In regard to his TDIU claim, the Board notes that the Veteran testified during the November 2019 hearing that he was granted social security disability benefits based on his service-connected disabilities. The evidence of record includes SSA records which was requested on January 13, 2014. However, the Board finds that obtaining updated SSA records is necessary as the current SSA records on file only includes the Veteran’s application for the benefits with medical records attached, and does not reflect the SSA’s decision for granting or denying that application. Baker v. West, 11 Vet. App. 163, 169 (1998); Woods v. Gober, 14 Vet. App. 214, 222 (2000). Also, the record shows that the Veteran was approved for physical therapy through VA Choice programs, but those records were not associated with the Veteran’s electronic claims file. See e.g., October 2017 VHA Choice Approval for Medical Care VA-Form 10-0386; November 2017 Addendum Note. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and his representative to request their assistance in obtaining any outstanding treatment record from VA and private sources related to the Veteran’s application to reopen his service connection claim for a left ear hearing loss disability and entitlement to TDIU. (a.) The AOJ is specifically asked to obtain 1) the updated SSA records; 2) VA VISTA records related to his left ear audiograms; and 3) VA Choice program records for physical therapy. (b.) Any record requests and/or responses must be associated with the Veteran’s electronic claims file. 2. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.