Citation Nr: 20052950 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 14-17 297 DATE: August 10, 2020 REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A March 2018 Board decision, inter alia, remanded the claim for additional development. Unfortunately, there has not been substantial compliance with the Board’s previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss disability is remanded. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The March 2018 Board remand instructed the addendum opinion obtained in this matter address the August 1992 retirement audiogram that shows some degree of hearing loss in the left ear at 3000 Hertz. An April 2020 VA medical opinion reflects that the Veteran’s hearing loss was less likely than not incurred in or caused by in-service noise injury. The rationale was: His first audio from 1968 is a whisper test that was 15/15. However, this is not a frequency specific test. The first audio that tested frequencies was from 1983 and showed no hearing loss in either ear. Comparing the 1983 audiogram to the 1992 retirement audiogram there are no significant shifts of greater than 10 dB. In fact, in many frequencies his hearing showed improvement from 1983….There is no hearing loss at separation per VA criteria at 3 kHz. Comparing 3 kHz in the left ear from 1983 until 1992 there is a 5 dB shift in hearing which is within the inter test variability (and also explains why other frequencies improved). Given that there was no shift from reenlistment to retirement it becomes less likely than not that his hearing loss is related to his military service. Here, although an April 2020 VA medical opinion was obtained, the medical opinion is inadequate for the following reasons. First, the negative opinion is predicated on the absence of any documented hearing loss disability in service—noting that there was no hearing loss at service separation. The Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Second, the opinion did not explain why any threshold shift shown during service is not a significant threshold shift and why the absence of such would tend to suggest that any current hearing loss disability is less likely than not related to in-service noise exposure. Third, the medical opinion simply does not support the negative conclusion reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from an otolaryngologist to fully address whether any hearing loss disability is at least as likely as not related to in-service noise exposure. The physician must opine on: (a.) Whether any hearing loss disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, to include in-service noise exposure. Explain. (b.) The opinion must specifically address the Veteran’s theory that his delayed onset hearing loss is etiologically related to in-service noise exposure and reflect consideration of the medical research, Journal of Neuroscience in May of 2015 (S. Kujawa, M.D.), referenced by his representative. See Appellate Brief (August 2020). (c.) The opinion should reflect consideration of the Veteran’s documented relevant history and assertions, to include that his hearing loss (even if it is of delayed onset) is related to in-service noise exposure, described as noise exposure related to metal fabrication (grinding/hammering/pounding metal and using pipe cutting machinery). See generally VA Examination (January 2011). The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of documented in-service complaints, findings, or diagnoses. 2. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.