Citation Nr: 21030815 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-28 248A DATE: May 19, 2021 REMANDED Entitlement to a compensable evaluation for bilateral hearing loss prior to August 29, 2016, is remanded. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss on or after August 29, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to November 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in an October 2017 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected bilateral hearing loss to 20 percent, effective from August 29, 2016. Because that evaluation does not represent the highest possible benefit, the issue remains in appellate status and has been recharacterized as stated above. AB v. Brown, 6 Vet. App. 35 (1993). A hearing was held before the undersigned Veterans Law Judge in February 2018. A transcript of the hearing is of record. During the February 2018 hearing, the Veteran confirmed that he wanted to revoke representation by the Texas Veterans Commission and proceed without representation at that time. See also November 2017 written statement. The Veteran is now represented by the above-named accredited representative, and a VA Form 21-22a is of record. The Board remanded the case for further development in April 2018. In a June 2020 decision, the Board decided another issue on appeal and remanded the above claim for further development. The case has since returned to the Board for appellate review. In addition, the Board notes that the Veteran has more recently contended that he is unable to work in part due to his service-connected bilateral hearing loss. See, e.g., August 2020 VA Form 21-526EZ (notation) and September 2020 VA Form 21-8940 (formal application). The record shows that the AOJ is already developing a claim for entitlement to a total disability rating based on individual unemployability (TDIU) that has been currently deferred for development in an April 2021 rating decision. As the increased evaluation claim must be remanded, the issue of entitlement to TDIU can be considered upon the additional development directed herein. On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claim. The AOJ did obtain VA audiograms in response to the Board's June 2020 remand and notified the Veteran of the unavailable audiogram from the Phoenix VA Medical Center. Nevertheless, VA treatment records added to the claims file since that time indicate there may be outstanding audiograms, as detailed in the directives below. The case must also be remanded to the AOJ for review and issuance of a supplemental statement of the case (SSOC) because the AOJ obtained the above relevant VA treatment records prior to the case being transferred to the Board. See 38 C.F.R. §§ 19.31, 19.37. Those records were not considered by the AOJ in the April 2021 rating decision continuing the current evaluation for the disability. Moreover, in a December 2020 letter, the Board notified the Veteran that he had the right to request that the AOJ review additional evidence added to the claims file since July 2020. The Board explained that, if the Veteran did not respond in 45 days from the date of the letter, it would assume that he did not wish to have the Board decide his appeal at that time, and the case would be remanded to the AOJ for review of the evidence. The Veteran did not respond to that letter; therefore, a remand is also needed for the AOJ's initial consideration of the additional evidence. The case is REMANDED for the following actions: 1. The AOJ should secure any outstanding VA audiological testing results contained in the Computerized Patient Record System (CPRS) Tools/Vista Imaging, Quasar, or any other records storage system. It is noted that audiograms dated from 2014 to 2019 were obtained or determined to be unavailable in response to the Board's prior remand (August 2020 claims file entries). However, VA treatment records were added to the claims file since that time, which show that there may be outstanding VA audiograms from June 2013 (Dallas VA Medical Center) and February 2021 (Southern Arizona VA Health Care System). All attempts and responses should be documented in the claims file. 2. After completing the foregoing development, the case should be reviewed by the AOJ on the basis of additional evidence since the April 2020 SSOC. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and be afforded an opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.