Citation Nr: 22016385 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-16 058 DATE: March 22, 2022 REMANDED Entitlement to a compensable disability rating for the service-connected left ear hearing loss disability for the period on appeal prior to September 20, 2021 is remanded. Entitlement to a disability rating in excess of 50 percent for the service-connected bilateral hearing loss disability for the period on appeal from September 20, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty from July to September 1982, December 2003 to April 2005, and February 2006 to February 2007, with additional service in the Army National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to a compensable disability rating for the service-connected left ear hearing loss disability. In June 2014, VA received the Veteran's Notice of Disagreement (NOD). In February 2018, the RO issued a Statement of the Case (SOC). In March 2018, VA received the Veteran's VA Form 9 appeal to the Board. In September 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In an October 2021 rating decision, the RO granted service connection for a right ear hearing loss disability (previously evaluated as left ear hearing loss) and assigned a disability rating of 50 percent, effective September 20, 2021. The issue of a disability rating in excess of 50 percent for the service-connected bilateral hearing loss disability from September 20, 2021 is inextricably intertwined with the issue of increased rating for a left ear hearing loss disability and will be necessarily addressed by this decision. Harris v. Derwinski, 1 Vet. App. 180 (1991). 1. Entitlement to a compensable disability rating for the service-connected left ear hearing loss disability for the period on appeal prior to September 20, 2021, and a disability rating in excess of 50 percent for the service-connected bilateral hearing loss disability for the period on appeal from September 20, 2021. There is no automatic waiver for evidence obtained by VA. See 38 U.S.C. § 7105(e). If such evidence, which is pertinent to the claim(s) on appeal, is received after a veteran's claim has been transferred to the Board for appellate review, a veteran can waive consideration of the evidence by the AOJ and permit the Board to consider the evidence in the first instance. If a veteran fails to waive AOJ consideration or specifically declines to waive such consideration, then remand is necessary for the AOJ to consider the evidence in the first instance. 38 C.F.R. §§ 19.37(b); 20.1305(c). The RO issued an SOC in February 2018 and certified the case to the Board in November 2018. Following transfer of the case to the Board, in October 2021, the RO obtained a new VA audiological examination. In January 2022, the Board sent the Veteran a letter indicating that the October 2021 VA audiological examination report had been associated with the claims file and asked the Veteran whether he wished to waive consideration of this evidence by the RO or, alternatively, have these additional records considered by the RO in the first instance. In a February 2022 letter, the Veteran asked the Board to remand the case for initial consideration of the additional evidence by the RO. Accordingly, the issues of a compensable disability rating for the service-connected left ear hearing loss disability for the period on appeal prior to September 20, 2021, and a disability rating in excess of 50 percent for the service-connected bilateral hearing loss disability for the period on appeal from September 20, 2021 must be remanded to the RO for initial consideration of the October 2021 VA audiological examination report. 38 C.F.R. §§ 19.37(b); 20.1305(c). The matters are REMANDED for the following action: 1. Adjudicate the Veteran's claims for entitlement to a compensable disability rating for the service-connected left ear hearing loss disability for the period on appeal prior to September 20, 2021, and a disability rating in excess of 50 percent for the service-connected bilateral hearing loss disability for the period on appeal from September 20, 2021. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case (SSOC) and return the case to the Board. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, 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.