Citation Nr: 22018809
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 14-10 671A
DATE: March 30, 2022

REMANDED

Entitlement to service connection for an ear disorder other than bilateral hearing loss and tinnitus is remanded.

Entitlement to service connection for a back disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1973 to July 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by a Department of Veterans Affairs (VA) Regional Office. 

In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record. 

In April 2018, the Board remanded the issues on appeal for additional development and, in November 2020, denied service connection for an ear disorder other than bilateral hearing loss and tinnitus and a back disorder.  The Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court) and, in November 2021, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded the Board's November 2020 decision.  The case now returns for further appellate review.

1. Entitlement to service connection for an ear disorder other than bilateral hearing loss and tinnitus.

2. Entitlement to service connection for a back disorder.

In the November 2020 decision, the Board denied service connection for an ear disorder other than bilateral hearing loss and tinnitus and a back disorder based on a finding that such disorders were not shown to be causally or etiologically related to any disease, injury, or incident during service and, in regard to the latter disorder, arthritis did not manifest to a compensable degree within one year of separation from active duty.  

However, in the November 2021 JMR, the parties found that the Board erred in failing to ensure that the VA satisfied its duty to assist as it did not make reasonable efforts to obtain relevant private treatment records.  Specifically, the parties noted that, in November 2010, the Veteran authorized VA to obtain records from Dr. J.M. of the Southern Clinic and Dr. D.E. of the Southeast Pain Management Center dated from 1990 to the present.  However, the record only contains such treatment records from Dr. J.M. dated from 2005 through 2010, and from Dr. D.E. dated from 2010.  Here, the parties indicated that there was no record of additional efforts by VA to obtain further records from Dr. J.M. or Dr. D.E. and, thus, a remand was necessary in order to attempt to obtain such outstanding private treatment records. 

Consequently, in light of the foregoing, the Board likewise finds that a remand is necessary in order to attempt to obtain all outstanding private treatment records from Dr. J.M. and Dr. D.E. dated from 1990 to the present.

The matters are REMANDED for the following action:

After obtaining any necessary authorization from the Veteran, obtain all outstanding private treatment records pertaining to her ear (other than bilateral hearing loss and tinnitus) and back disorders, to include those from Dr. J.M. of the Southern Clinic and Dr. D.E. of the Southeast Pain Management Center dated from 1990 to the present.  Make at least (2) attempts to obtain records from any identified sources.  If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Koria B. Stanton, 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.