Citation Nr: 1759918 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-29 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served in the United States Army and the Army Reserve. She had a period of active duty for training (ACDUTRA) from June 2, 1980 to August 29, 1980. The Veteran also had additional periods of ACDUTRA and inactive duty for training (INACDUTRA) in the Army Reserve between May 1980 and March 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. As a procedural matter, these claims were previously before the Board in August 2014 and April 2017. In April 2017, the Board denied the claim for right ear hearing loss and remanded the service connection claims for left ear hearing loss and tinnitus for additional development. The claims have since been returned to the Board for appellate review. As noted in the April 2017 Board decision, Veteran status was attained following a VA determination that the then-claimant had incurred a service-connected disability during active duty training in April 1990. See 38 U.S.C. §§ 101(24) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, these claims must be remanded again for further development. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This obligation is mandatory, not discretionary. The Veteran asserts that she has left ear hearing loss due to noise exposure during reserve service. In April 2017, the Board remanded these claims to the RO for additional development. The Board instructed the RO, in part, to obtain a new VA examination and medical opinion to address the conflicting medical evidence as to whether there was a current diagnosis of left ear hearing loss. Specifically, the Board requested the examiner reconcile the conflicting evidence and provide an opinion on whether the Veteran currently has left ear hearing loss. Additionally, the Board requested the examiner provide an opinion as to whether any currently diagnosed left ear hearing loss had its onset during or is otherwise related to any period of ACDUTRA or INACDUTRA. Finally, the Board requested a medical opinion on whether any currently seen left ear hearing loss is consistent with acoustic trauma experienced during any period of ACDUTRA or INACDUTRA. On review, the Board finds the June 2017 VA examination and corresponding medical opinions did not address all of the questions posed by the Board. Specifically, the medical opinion only considered the Veteran's ACDUTRA period of service from June 1980 to August 1980. As noted in the prior remand, the Veteran also had additional periods of ACDUTRA and INACDUTRA that must be considered. The Board specifically requested a medical opinion to consider whether the onset of the left ear hearing loss occurred during any period of ACDTRUA or INACDUTRA between June 1980 and discharge from reserve service in April 1992. Since this issue was not addressed, the opinion is inadequate. Thus, the Board finds that the RO should obtain an addendum opinion to ascertain the likely etiology of the Veteran's currently diagnosed left ear hearing loss and whether the left ear hearing loss had its onset during, or is otherwise related to, any period of ACDTRUA and INACDUTRA between June 1980 and April 1992. Further, the Board observes that the examiner, in the June 2016 examination report, opined that the Veteran's fluctuating audiogram results and the asymmetry of the left ear hearing loss could be related to "her ear disease on the left side." However, there is no evidence of record the Veteran has been diagnosed with left ear disease. Additionally, this medical opinion appears speculative as it is not supported by any rationale. Clarification is required to fully address the Veteran's claim. Turning to the service connection claim for tinnitus, this claim must also be remanded. A complete rationale was not provided to support the conclusion that the tinnitus was etiologically related to the sensorineural hearing loss but not related to a period of ACDUTRA or INACDUTRA. The VA examiner's opinion appears to be based, in large part, on the lack of contemporaneous medical records documenting hearing loss in service without consideration of the Veteran's lay statements regarding experiencing hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (observing that "the medical examiner impermissibly ignored the appellant's lay assertions that he sustained a back injury during service"). Moreover, service connection is not precluded for hearing loss which first met VA's definition of disability after service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303(d) (2017) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). Therefore, an addendum medical opinion is required. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Issue a written formal finding outlining each of the Veteran's periods of active duty, ACDUTRA, and INACDUTRA and describe these periods using specific dates. Associate the written finding with the claims file and provide a copy of it to the VA examiner for the addendum opinion as directed below. 3. Then, request an addendum medical opinion regarding the nature and etiology of the left ear hearing loss and tinnitus. The examiner is advised that an explanation must be provided for any opinions and conclusions reached. Whether an additional examination of the Veteran is required is left to the examiner's discretion. The entire claims file should be reviewed. However, specific attention is called to the prior VA examinations in November 2010 (mild sensorineural left ear hearing loss), September 2011 (normal hearing in left ear), December 2014 (normal hearing in left ear), and June 2016 (moderate sensorineural left ear hearing loss). After a complete review of the claims file, the examiner should clarify the following: (a) Provide an opinion of whether the Veteran's left ear hearing loss AND tinnitus had their onset, or are otherwise related to a period of ACDUTRA or INACDUTRA. (b) Address and explain the notation by the June 2017 examiner with regard to the possibility that the Veteran may have had sudden ear disease as the cause of her asymmetrical hearing loss in left ear. See June 2017 VA examination rationale section. *In doing so, provide an opinion as to whether it is at least as likely as not that any sudden ear disease led to the current left ear hearing loss, and if so, whether this sudden ear disease had its onset from acoustic trauma during service, including any period of ACDUTRA or INACDUTRA, or is otherwise related to it. *The examiner is advised that the Veteran's contentions, including reports of hearing loss and tinnitus during and since discharge from service must be considered and discussed. Denial of service connection for a disability cannot be solely based on the lack of complaints, diagnosis, or treatment of a disability during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303(d) (2017). 4. After completing the above actions, and any other development deemed necessary, the claims must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).