Citation Nr: 21021687
Decision Date: 04/13/21	Archive Date: 04/13/21

DOCKET NO. 12-20 093
DATE: April 13, 2021

REMANDED

Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1972 to June 1976. 

This matter is on appeal from a December 2010 rating decision that granted service connection for bilateral hearing loss with an initial noncompensable rating. The Board remanded the issue for further development in October 2016 and then denied entitlement to a higher initial rating in May 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims, which issued a March 2019 Order granting a Joint Motion for Remand (JMR) back to the Board. In July 2019 and July 2020, the Board remanded the appeal in order to comply with the terms of the March 2019 JMR.

The appeal has returned to the Board for further appellate consideration.

Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis, is remanded

Unfortunately, another remand is required to ensure substantial compliance with the Board’s previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

In the March 2019 JMR, the parties agreed that remand of the Veteran’s claims was required because the Board did not ensure that VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) by failing to obtain or attempt to obtain outstanding VA and private treatment records. The parties agreed that the VA treatment records reflected various records scanned into the VistA imaging system that were not associated with the record, specifically numerous documents generated during VA emergency room (ER) visits were scanned into the VistA imaging system, including VA emergency treatment visits, administrative notes, and non-VA care consult records including a December 2015 ER visit in which the Veteran was seen for a right ear ache.  

Unfortunately, there is still no indication that VA sought to obtain the JMR identified VistA imaging treatment records and another remand is required to comply with the July 2019 Board remand and March 2019 JMR. The printing of CAPRI records, in and of themselves, does not satisfy the JMR terms to obtain the actual records which were scanned into VA’s VistA imaging system.

The matters are REMANDED for the following action:

1. Associate with the claims folder all medical records separately stored in VistA imaging, specifically: 

•	December 8, 2015 Emergency Dept. Notes, noting right ear ache; 

•	April 12, 2016 Emergency Dept. Note and Administrative Note;

•	4August 27, 2014 Emergency Dept. Note and Administrative Note;

•	July 29, 2014 Administrative Note and Emergency Dept. Note; 

•	March 25, 2014 Emergency Dept. Note and   Administrative Note; 

•	May 10, 2011 Emergency Dept. Note and Administrative Note); 

•	November 3, 2009 Administrative Note; 

•	August 27, 2010 Administrative Note; 

•	May 5, 2016 Administration Note and Procedural Note; 

•	October 21, 2015 Administration Note; 

•	September 10, 2015 Administration Note; 

•	158 February 23, 2018 non-VA sleep study scanned note; 

•	February 2, 2018 HIMS non-VA/Outside Records; 

•	January 30, 2018 Community Care Consult Result note; 

•	September 19, 2014 non-VA consult record;

•	September 5, 2014 non-VA consult; and 

•	August 28, 2014 non-VA consult record. 

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Patrick C. Brady, Attorney Advisor

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.