Citation Nr: 21028950 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-21 020 DATE: May 12, 2021 REMANDED Entitlement to a compensable rating prior to March 9, 2016 and in excess of 10 percent thereafter for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1961 to April 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2009 and January 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision in November 2018, that among other things, denied a compensable rating prior to March 9, 2016, and in excess of 10 percent thereafter for bilateral hearing loss. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision in July 2020. The Court found that the Board failed to issue adequate reasons and bases for its decision in that the Board failed to address potentially favorable evidence of an increase in severity in the Veteran's hearing loss prior to the March 2016 VA examination. In November 2020, the Veteran's attorney submitted a post-appeal brief that among other things, indicated that the Veteran's hearing had worsened, as evidenced by a VA treatment record dated March 2019. The Veteran was last afforded a VA examination in March 2016. Because of the passage of time and the indication of worsening, the Veteran should be provided a VA examination to ascertain the current severity and manifestation of his service-connected disability on appeal. See Snuffer v. Gober, 10 Vet. App. 400 (1997). As the Board is remanding for an examination due to the indication of worsening of the Veteran's hearing loss, a retrospective opinion that considers the medical evidence of record regarding the Veteran's hearing loss prior to March 9, 2016 should also be obtained. Thus, the Board will also remand the matter for a retrospective medical opinion. The Board notes that the Veteran appears to have sought most of his medical care concerning his service-connected hearing loss through VA; however, records of his hearing loss treatment have not been associated with the file since 2016. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal and must be obtained upon remand. The matters are REMANDED for the following action: 1. Obtain VA treatment records regarding the Veteran's bilateral hearing loss from February 2016 to the present and associate those documents with the claims file. If it is determined no such records exist, that should be documented. 2. Once the record is developed to the extent possible, afford the Veteran a VA examination to determine the current severity of his bilateral hearing loss. The claims file also should be made available to the examiner. In addition to dictating objective test results, the examiner's report should describe the effects of the Veteran's disability on his occupational functioning and daily activities. 3. Then, to the extent possible, the examiner should provide a retrospective medical opinion regarding the extent and severity of the Veteran's bilateral hearing loss prior to March 9, 2016. Specifically, the examiner should provide an estimate as to when an increase in the Veteran's hearing loss, which was measured at the March 9, 2016 VA examination, likely occurred. A complete rationale should be given for all opinions and conclusions expressed, and if it is not possible to provide the requested opinions or information, an explanation should be given. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.