Citation Nr: 22013804 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-39 334 DATE: March 10, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1955 to January 1956. The claim on appeal comes before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for bilateral hearing loss is remanded. By way of background, the Veteran's claim for service connection for bilateral hearing loss was previously before the Board in September 2020. The claim was denied for the following reasons: the right ear hearing loss was deemed clearly and unmistakably preexisting service, and clearly and unmistakably not aggravated beyond natural progression of the disability; meanwhile, the left ear hearing loss was denied for a failure to establish a diagnosis of hearing loss for VA purposes at any time during the appellate period. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). These holdings were vacated pursuant to a Joint Motion for Remand (JMR) granted by the Court in November 2021. See JMR (Nov. 3, 2021). In short, while the JMR found that the Board errored with regards to its determination for the right ear hearing loss by failing to adequately explain how that disability was clearly and unmistakably not aggravated beyond natural progression. The JMR also indicated that the holdings require vacatur because certain private treatment records, which may have established hearing loss prior to when otherwise diagnosed, were not obtained, and the AOJ did not sufficiently document fully exhausted attempts to retrieve these records. See, e.g.: Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012), D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-5 (2007). The claim is accordingly remanded. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford them an opportunity to submit any copies in their possession. The AOJ must specifically ensure that all private treatment records identified in the JMR are associated with the claims file, or else, for any records identified in the JMR but ultimately not available, all attempts to obtain these records must be documented with a negative search result. The JMR identifies the following sources of records: (a) Dr. D.V. (b) Lake Ear, Nose and Throat (c) Dr. J.M.R. (d) Manhattan Eye, Ear, and Throat Hospital (e) Dr. E.C. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.