Citation Nr: 18160373
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-33 958
DATE:	December 26, 2018
REMANDED
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran had active service from September 1952 to September 1954.
In September 2017, the Board denied the Veteran’s claims of entitlement to a TDIU. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board’s September 2017 decision. In July 2018, the CAVC granted a Joint Motion for Remand and, in so doing, remanded the Board’s denial of TDIU. In its decision, the CAVC found that the Board failed to obtain an adequate medical opinion which complied with the Board’s December 2016 remand instructions. Specifically, the CAVC found the Board relied on a February 2017 opinion which failed to opine as to the Veteran’s level of functional impairment due to his hearing loss and tinnitus disabilities in its September 2017 decision. Accordingly, the appeal has been remanded to the Board for action consistent with the CAVC decision.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
After review of the record, the Board regrettably finds that a remand for further development is warranted as there has not been substantial compliance with the December 2016 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this appeal in December 2016 for additional development. Specifically, the Board requested the Veteran be afforded a VA audiological examination, and the examiner was to provide an opinion regarding the functional impact of the Veteran’s service-connected hearing loss and tinnitus, to include his employability. The examiner was also requested to address specifically a March 2015 private opinion of record which found the Veteran’s hearing loss and tinnitus disabilities would impact his employability. The Veteran was afforded a VA examination in February 2017. The examiner opined only that the “test results are not being reported as they are not considered to be valid,” and that “there was poor agreement between [the Veteran’s] observed communication ability and his admitted thresholds.” Therefore, remand for a new medical opinion is necessary.
The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. At 271. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Id. Accordingly, remand is required to obtain an adequate medical opinion that complies with the Board remand directives.
Finally, the Board notes that the most recent medical records relevant to the appeal associated with the claims file are dated March 2017. On remand, the RO should locate any medical treatment records not already included in the claims file and associate them with the evidence of record.   
The matter is REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding treatment records since March 2017. Ask the Veteran to identify any recent private treatment pertinent to his claim and to provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with his file.
2. Then, afford the Veteran an appropriate VA examination to determine his level of functional impairment due to his service-connected hearing loss and tinnitus disabilities. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic claims file must be made accessible to the examiner.
In the examination report, the examiner should include a discussion of the Veteran’s documented medical history and assertions (to include specifically the March 2015 private opinion of record which found the Veteran’s hearing loss and tinnitus impacted his employability).  The examiner is asked to express his, or her, own opinion on the functional impact of the Veteran’s hearing loss and tinnitus on his ordinary activities, to include his employability.  The examiner should provide rationale for his, or her, opinion.  If the examiner’s opinion regarding the functional impact of the Veteran’s hearing loss and tinnitus contradicts the March 2015 private opinion, the examiner must reconcile those conclusions.
3. After completing the above action, to include any other development deemed warranted, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claim continues to be denied or is not granted to the Veteran’s satisfaction, send him and his 

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representative a Supplemental Statement of the Case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim.
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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