Citation Nr: 1754204	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-31 723	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Matta, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1963 to July 1967.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO).  In May 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2016, the Board remanded this matter for additional development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if action on his part is required.


REMAND

Although the Board regrets the additional delay, further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim.  See 38 C.F.R. § 3.159.  Specifically, where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The November 2016 Board remand noted that the Veteran was seen for an audiology consultation in December 2011 and that an audiogram from that appointment could be viewed in "CPRS Tools Audiogram Display."  As the Board does not have access to those records, the RO was instructed to obtain the results of this audiogram.  Unfortunately, while attempts were made, this audiogram was never obtained.  See undated Deferred Rating Decision (noting that the December 2011 VA treatment record does not include the requested audiogram and that the VA Medical Center may need to be contacted).  Because there is no indication that the audiogram does not exist or that attempts to obtain it would be futile, see 38 C.F.R. § 3.159(e), the Board must remand this matter again for compliance with its prior Remand order.


Accordingly, the case is REMANDED for the following:

1. Obtain for the record copies of the complete clinical records of all VA treatment the Veteran received for his bilateral hearing loss (i.e., update to the present the records of his VA treatment), to specifically include the December 2011 audiogram that can only be viewed in "CPRS Tools Audiogram Display," which the Board does not have access to (as noted above).

2.  The AOJ should then review the record and re-adjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C.A. §§ 5109B, 7112 (2014).




_________________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims.  38 U.S.C.A. § 7252 (2012).  This remand is a preliminary order and not an appealable decision on the merits of the claim(s).  38 C.F.R. § 20.1100(b) (2017).
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