Citation Nr: 21015028
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 17-35 462
DATE: March 16, 2021

REMANDED

Entitlement to service connection for a right ear hearing loss disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty form February 1986 to November 1991.

This matter was denied by the Board in a December 2019 decision.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, resulting in an October 2020 Joint Motion for Remand (JMR).  

1. Entitlement to service connection for a right ear hearing loss disability is remanded.

The October 2020 JMR found that the Board failed to ensure VA satisfied its duty to assist when it denied the Veteran’s claim in December 2019.  Specifically, the JMR notes that a September 2019 private medical report indicating that a “lack of access to the Veteran’s medical records made a nexus opinion impossible put VA on notice of the need for further evidentiary development.”  Citing Watai v. Brown, 9 Vet. App. 441, 444 (1996) and Tucker v. West, 11 Vet. App. 369, 374 (1998), the JMR notes VA’s duty under the circumstances to “inform the appellant that the Secretary, under proper authorization as required by VA regulations, would furnish copies of service medical records to [the private examiner] to enable him to render a less speculative opinion.”  Pursuant to the JMR, remand is necessary to properly inform the Veteran that he may authorize VA to provide the private examiner with his service medical records.

The matters are REMANDED for the following action:

1. Contact the Veteran in accordance with the October 2020 Joint Motion for Remand, to inform him that upon proper authorization VA may provide the September 2019 private examiner (or another private examiner) with the Veteran’s medical records.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	W. R. Stephens, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.