Citation Nr: 18160165 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 12-30 648A DATE: December 26, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss disability between December 22, 2009 to October 2, 2017 is remanded. Entitlement to an effective date earlier than December 22, 2009 for the grant of service connection for bilateral hearing loss disability is remanded. Entitlement to an effective date earlier than October 2, 2017 for the grant of eligibility for dependents' educational assistance (DEA) benefits is remanded. Entitlement to an effective date earlier than October 2, 2017 for the grant of special monthly compensation (SMC) based on loss of use of deafness of both ears is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from June 1974 to June 1977. These issues come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. An August 2010 rating decision denied the Veteran’s claims to reopen service connection for hearing loss and psychiatric disabilities. A February 2015 Board decision granted the claims to reopen service connection and remanded the claims for additional development. Service connection for bilateral hearing loss was granted by the RO in a May 2015 rating decision. The Veteran is appealing the assigned rating. Thereafter, the RO increased the Veteran’s disability rating to 100 percent for bilateral hearing loss, granted SMC entitlement for loss of use of deafness of both ears, and established DEA eligibility in an October 2017 rating decision. The Veteran is appealing the effective date of these entitlements. The Board notes that the Veteran's claim of entitlement to service connection for an acquired psychiatric disability was granted in an September 2018 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); 38 C.F.R. § 20.200 (2017). The Veteran has been rated as 100 percent disabling for his bilateral hearing loss since October 2, 2017, the date of the most recent VA audiological examination. The Veteran contends that he is entitled to an initial rating in excess of 10 percent from December 22, 2009 (the date of his claim to reopen) to October 2, 2017. In addition, the Veteran contends that he is entitled to earlier effective dates for the grant of service connection for his bilateral hearing loss disability, the grant of SMC based on loss of use, and the grant of eligibility for DEA benefits. The Veteran underwent several VA audiological examinations during the pendency of this appeal. A October 2010 VA examination found severe hearing loss; however, the examiner reported that the test results were unreliable due to the Veteran’s discomfort and agitation during testing. A September 2012 examination (with an October 2012 addendum opinion) found much less severe hearing loss, which the RO used to determine the 10 percent disability rating for the relevant time period on appeal. An October 2017 VA examination found severe hearing loss that warranted a 100 percent disability rating. This matter was remanded for additional development by the Board in a February 2018 Board decision. Specifically, the Board remanded this matter for the issuance of an addendum VA medical opinion on whether the October 2010 audiology examination results are, in retrospect, reliable and consistent with the findings noted in the October 2017 audiological examination. In a July 2018 addendum VA medical opinion, the examiner gave a positive opinion that the October 2010 examination findings are reliable and consistent with the October 2017 examination findings. However, the examiner only discussed the accuracy of the October 2017 examination findings. The examiner found that, because the 2017 audiological test results were accurate, it is at least as likely as not that the audiological test results from October 2010, are, in retrospect, reliable and consistent with the findings from 2017. Significantly, the examiner did not provide a rationale to support this opinion. The September 2012 VA examination results which indicated significantly less hearing loss was not addressed in the opinion. The Board finds that the report of the July 2018 VA fails to comply with the Board’s February 2018 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). As such, this matter is to be remanded for the issuance of an addendum VA medical opinion that substantially complies with the Board’s previous remand directive. As the Veteran’s entitlements to an earlier effective date for the grant of service connection for bilateral hearing loss, the grant of SMC for loss of use, and the grant of eligibility for DEA benefits are inexplicably intertwined with the Veteran’s increased rating claim on appeal, the Board finds that these issues must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Return the Veteran’s claims file to the VA examiner who issued the July 2018 addendum medical opinion. If that examiner is unavailable, then review by a medical professional with appropriate expertise will be sufficient. The examiner should review the Veteran’s claims file, including a copy of this remand. Based on a review of the record, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the audiology examination results in October 2010 are, in retrospect, reliable and therefore consistent with the findings noted in October 2017? In addressing this question, the examiner must address the relevancy of the 2012 audiological examination reports which are different than the October 2010 results which were found unreliable at the time of testing. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel