Citation Nr: 21040413 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-35 310 DATE: July 3, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from January 2000 to December 2009. He testified before the undersigned Veterans Law Judge during a January 2019 Travel Board hearing and a transcript is of record. An earlier April 2013 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral hearing loss. That decision became final as no notice of disagreement was filed within one year following the Rating Decision. In July 2019, the Board of Veterans' Appeals (Board) determined that new and material medical and lay evidence which raised a reasonable possibility of substantiating a claim for bilateral hearing loss had been received. Therefore, the Board reopened the Veteran's claim for service connection for bilateral hearing loss. The Board then remanded the issue in order to: obtain audiometric data from an October 2017 VA National Center for Rehabilitative Auditory Research study and April 2018 Pacific Audiology Clinic notes; obtain the necessary release from the Veteran and request all outstanding non-VA treatment records from Pacific Audiology Clinic; and schedule a VA audiological examination to evaluate the current severity of any hearing loss disability and obtain etiology opinions. Following a March 2020 VA examination, the Veteran's claim for service connection for left ear hearing loss was granted with a 0 percent disability rating effective February 27, 2014. See June 2020 Rating Decision. That decision is considered a full grant of the Veteran's appeal as to that issue. As such, that specific claim is no longer in front of the Board. In November 2019, the RO sent a letter to the Veteran requesting that he complete and return VA forms 21-4142 and 21-4142(a) in order for VA to obtain treatment records from private medical sources; provide all audiometric data from the Veteran's October 31, 2017 participation in a VA National Center for Rehabilitative Auditory Research study and April 2018 Pacific Audiology Clinic notes obtained by the Portland VAMC, as well as provide all outstanding treatment records from Pacific Audiology Clinic. In January 2020, the RO again sent a letter to the Veteran requesting that he complete and return VA forms 21-4142 and 21-4142(a), so VA could obtain treatment records on the Veteran's behalf. In the alternative, the Veteran was told that he may want to obtain and send VA the records himself, if possible. To date, there has been no reply from the Veteran, so nothing further will be done in this respect. However, the RO was also directed to obtain all audiometric data from the Veteran's October 31, 2017 participation in a VA National Center for Rehabilitative Auditory Research (NCRAR) study and April 2018 Pacific Audiology Clinic notes directly from the Portland VA Medical Center. The RO was also directed to document its search for these records, including all inquiries in VA medical records systems other than CAPRI (e.g., Vista), if applicable. While the RO did obtain VA treatment records, there is no indication in the file that the RO inquried within the VA medical system for these private records, as required by the Board's prior remand. Any private medical records obtained by the VAMC are not kept with regular VA progress notes, so obtaining only the progress notes does not indicate other records do not exist especially in this case where the progress notes indicate the private records were, in fact, received by the VAMC. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the Veteran's private treatment records that are in the possession of the VA. As these records may contain audiological test results that may be favorable to the claim, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board sincerely apologizes for this further delay. The matter is REMANDED for the following action: 1. Obtain the following outstanding records from the Portland VA Medical Center (VAMC): all audiometric data from the Veteran's October 31, 2017 participation in a VA National Cetner for Rehabilitative Auditory Research (NCRAR) study (see 10/31/2017 VA research consent note); and April 2018 Pacific Audiology Clinic notes obtain by the Portland VAMC (see Non-VA Consult note signed 06/01/2018). The AOJ must document its search for these records, including all inquries in VA medical records systems other than CAPRI (e.g., Vista), if applicable. 2. If and only if any newly obtained evidence shows a current right ear hearing loss disability for VA purposes, request a VA audiological opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right ear hearing loss is related to active service, including his conceded in-service noise exposure from his MOS as a missile and space systems maintenance journeyman? The examiner must note his or her review of the complete claims file and provide full rationales for all opinions. Please consider the following evidence: March 2019 favorable private audiological opinion; pertinent audiological findings noted in the service treatment records, e.g.: August 2006 hearing conservation data (showing significant threshold shifts on two distinct dates); August 2006 hearing conservation examination, audiometric case history (Veteran endorsed difficulty hearing in noisy rooms and that his hearing frequently changes; physician's remarks noted "possible threshold shift" warranting August 7, 2006 retest, which did indeed note threshold shifts); July 2004 hearing conservation data record (provider's remarks note test indicated an early warning for a decrease in hearing); September 2000 hearing conservation examination, audiometric case history (Veteran endorsed difficulty hearing in noisy rooms, that one ear was better than the other, and hearing loss; provider noted his trouble hearing over background noise); and any additional VA and private audiological evidence obtained after this remand. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parker N. Reynolds, 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.