Citation Nr: 21015766
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 20-02 197A
DATE: March 18, 2021

REMANDED

Entitlement to an effective date prior to June 14, 2017 for the award of service connection for bilateral hearing loss is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from December 1969 to September 1971.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for bilateral hearing loss and assigned a noncompensable rating, effective June 14, 2017. In this regard, new and material evidence was received within one year of that rating decision, and the Veteran appealed the August 2018 rating decision considering this evidence. 38 C.F.R. § 3.156(b).

Notably, the August 2018 rating decision increased the Veteran’s rating for bilateral hearing loss to 10 percent, effective July 24, 2018. Additionally, in September 20202, the Board denied the Veteran’s claim of entitlement to an initial compensable rating from June 14, 2017 to July 23, 2018 for bilateral hearing loss and remanded the above listed claims for further development. See September 2020 Board Decision.

1. Entitlement to an effective date prior to June 14, 2017 for the award of service connection for bilateral hearing loss is remanded.

Unfortunately, another remand is required, as there has not been substantial compliance with the directives of the September 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Specifically, the Board directed the RO to provide a statement of the case (SOC) adjudicating the claim for an entitlement to an earlier effective date prior to June 14, 2017 for the award of service connection for bilateral hearing loss. Instead, the November 2020 SOC erroneously discusses entitlement to an effective date prior to July 24, 2018 for the award of an increased rating for hearing loss.  To date, no SOC has been issued regarding the effective date for service connection, and one is needed on remand. Manlincon v. West, 12 Vet. App. 238 (1999).

2. Entitlement to a TDIU is remanded.

Unfortunately, there has not been substantial compliance with the TDIU claim either, as the RO has not considered the August 2020 VA audiological examination as the Board directed in the September 2020 Remand. See Stegall, supra. Specifically, there is no mention of the VA examination in the “evidence” section of the January 2021 supplemental statement of the case (SSOC) nor the body of the statement. The August 2020 VA examination should be considered on remand, and any development necessary to properly readjudicate the Veteran’s TDIU claim should also be accomplished, to include obtaining outstanding treatment records.

The matters are REMANDED for the following action:

1. Issue a SOC addressing the issue of entitlement to an effective date prior to June 14, 2017 for the award of service connection for bilateral hearing loss, along with appellate rights.

2. Obtain any outstanding VA treatment records.

3. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records.

4. Then readjudicate the TDIU claim, considering the August 2020 VA audiological examination and any other additional relevant evidence received since the most recent SOC.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. J. Rogers, 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.