Citation Nr: 20053085 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 18-06 822 DATE: August 11, 2020 REMANDED Service connection for bilateral hearing loss, to include as secondary to service-connected left perforated ear drum and tinnitus is remanded. REASONS FOR REMAND The Veteran had active service with the United States Air Force from August 1964 to August 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied reopening service-connection for bilateral hearing loss. The appeal was previously before the Board and was reopened and remanded in March 2019 for a VA addendum opinion. Unfortunately, the Board finds that an additional remand is necessary prior to rendering a decision on the appeal. Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service connection for bilateral hearing loss, to include as secondary to service-connected left perforated ear drum and tinnitus is remanded. Within a March 2019 Board remand, a VA addendum opinion was requested to determine whether currently diagnosed sensorineural hearing loss was secondary to service-connected left perforated ear drum and tinnitus. Further, a VA addendum opinion was required to provide a direct service connection medical opinion with adequate supporting rationale, which was not achieved in a December 2016 VA examination. On remand, the Veteran was afforded a VA examination in December 2019. The VA examiner opined that currently diagnosed sensorineural hearing loss was less likely than not caused by the bilateral hearing loss in service, reasoning that the Veteran’s perforated ear drum in service was due to a history of acute otitis media which began prior to service, as stated in a January 1968 treatment note. The VA examiner further explained that the Veteran’s pre-existing hearing loss was “noted” on the entrance examination Report of Medical History. Additionally, the VA examiner reasoned that the Veteran did not have a shift in hearing loss during service and that he had normal hearing on separation. The Board finds the December 2019 VA examiner’s rationale inadequate for decisional purposes. First, the Board notes that in general, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012) (emphasis added). The term “noted” on entrance denotes “[o]nly such conditions as are recorded in examination reports,” and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304 (b)(1) (2019) (emphasis added). Therefore, the December 2019 VA examiner’s reliance of the Veteran’s own reports of pre-existing hearing issues within an August 1964 Report of Medical History is misplaced. Rather, the Veteran’s August 1964 Report of Medical Examination shows a normal clinical evaluation of the ears. Therefore, the Veteran is considered sound on entrance, and the burden shifts to VA to prove by clear and unmistakable evidence that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. Remand is necessary to obtain a medical opinion to rebut the presumption of soundness, if at all, prior to rendering a decision on the appeal. Secondly, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does “not serve as a bar to service connection” where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Because the December 2019 VA examiner relied, in part, on the Veteran’s separation examination showing hearing within normal limits, along with the aforementioned inadequacies, the Board must remand for a new VA addendum opinion. The matters are REMANDED for the following action: 1. The RO should refer the case for a VA addendum opinion to determine the nature and etiology of bilateral hearing loss. An examination of the Veteran is not required but may be so ordered by the VA examiner if he/she determines it necessary to render the below requested opinions. The VA examiner is requested to provide the following opinions for bilateral hearing loss and articulate such opinions in the language requested in each prompt: a. Whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran’s bilateral hearing loss pre-existed his military service. The term “clear and unmistakable” is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. b. If it is determined that the Veteran’s hearing loss clearly and unmistakably pre-existed his military service, determine whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such pre-existing hearing loss was NOT aggravated in service. c. If it is found that there is clear and unmistakable evidence that the Veteran’s hearing loss existed prior to service AND that there is clear and unmistakable evidence that the disability was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. d. If, however, it is determined that there is no clear and unmistakable evidence establishing that the Veteran’s hearing loss pre-existed military service and that the pre-existing disability was NOT aggravated in service, the examiner must take as conclusive fact that the Veteran was sound on entrance into the military. If that is the conclusion reached, the examiner should provide opinions as to: (i) whether it is at least as likely as not (50 percent probability or greater) that hearing loss was caused by or was incurred in service, and (ii) whether it is at least as likely as not (50 percent probability or greater) that the Veteran experienced chronic symptoms of hearing loss in service, with continuous symptoms since service separation. The Board notes that while the Veteran had hearing within normal limits on service separation, this fact alone does not serve as a bar to service connection for bilateral hearing loss. Further, the examiner must take into consideration the Veteran’s credible statements that he had experienced gradual diminished hearing since his April 1968 left ear drum perforation surgery. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. The RO must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. Specifically, the RO should ensure that the VA medical opinions received are articulated in the language as requested by the Board. (Continued on the next page)   3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.