Citation Nr: 22017402 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-54 584 DATE: March 25, 2022 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1970 to December 1971, which includes verified service within the Republic of Vietnam. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. By way of background, the Veteran has been service connection for bilateral hearing loss since February 17, 2000, albeit noncompensable since that time. The Veteran filed a claim for an increased rating which was received on October 2, 2015. A new examination was performed, and the December 2015 rating decision that is on appeal was issued, communicating that the noncompensable rating is continued. The Veteran returned a timely and valid Notice of Disagreement (NOD) that was received in October 2016. In short, the Veteran claimed that his speech discrimination scores should be worse than as they were then measured. The Veteran was then afforded an updated VA audiological examination on March 23, 2017. On October 28, 2021, the Board received an Informal Hearing Presentation from the Veteran's representative, claiming that due to continued further gradual hearing loss since the March 2017 examination, an updated examination is warranted. See VSO IHP (rec'd Oct. 28, 2021), citing 38 U.S.C. § 5103A(d); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). While the Board has no reason to doubt the veracity of the Veteran's claim that he believes that his hearing has worsened over nearly five years since the most recent VA audiological examination, the Board also cannot escape the conclusion that VA medical records are only up to date as of January 11, 2018, and there are otherwise no private medical records more recent than that date. See VA Medical Records (rec'd Feb. 5, 2018). If the Veteran sought medical attention at the VA Medical Center any later than January 11, 2018, then the VA would be in constructive possession of those records, and the Board would be precluded from adjudicating the matter because these records are not available for Board review. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (holding that the VA's duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records). Under these circumstances, the Board determines that a remand is required to associate all updated VA medical records with the Veteran's claims file, allow the Veteran the opportunity to submit more recent and relevant private treatment records that may exist (or allow the AOJ to do so on his behalf via a records release), and readjudicate the Veteran's appeal accordingly. The Board sincerely regrets additional delay that may be incurred as a result of the above. The matters are REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to identify any outstanding private or VA treatment records relevant to the bilateral hearing loss claim on appeal, including but not limited to any private treatment records from any of the Veteran's appropriate physicians, and all audiograms undergone during the appellate period, which in this case begins on October 2, 2015. 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 attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records appear to be up to date as of January 11, 2018, but no medical records after that date are available for Board review. 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 and his attorney 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). 2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected bilateral hearing loss. A rationale for any opinion offered should be provided. 3. After the above development, as well as any additionally indicated development has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Mariah N. Sim Acting 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.