Citation Nr: 21000751 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-28 219 DATE: January 6, 2021 REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds that remand is warranted to obtain a supplemental medical examination in accordance with the May 2020 order of the Court of Appeals for Veterans Claims (Court). Entitlement to service connection for bilateral hearing loss disability is remanded. The matter last appeared before the Board in September 2018 at which time the Board granted the petition to reopen the claim of entitlement to service connection for bilateral hearing loss but denied entitlement to service connection for bilateral hearing loss, finding the most probative evidence of record to be a September 2016 VA examination. The Veteran filed an appeal to the Court contesting the Board’s September 2018 decision to the extent that it denied the claim of service connection bilateral hearing loss. In a May 2020 decision, the Court issued a Memorandum Decision, vacating and remanding the issue to the Board. Specifically, the Court took note that the Board did not consider the properly raised argument of a relationship between the Veteran’s service-connected tinnitus and his current bilateral hearing loss. The Court noted that when the Board failed to consider and adjudicate an argument or theory reasonably raised by the record, the Board commits error requiring remand. The Court found that the Veteran’s representative cited to a positive private medical nexus opinion that Veteran’s hearing loss had the same etiology as his service-connected tinnitus and that the Board did not address this issue in the September 2018 decision. The Court set aside the portion of the September 2018 Board decision that denied service connection for the Veteran’s hearing loss and remanded the matter for further proceedings. The Court ordered the Board to directly address the argument and consider the weight to be afforded to the private medical provider’s opinion that the two conditions have the same etiology and order a supplemental medical examination, if necessary. Turning to the evidence of record, the medical evidence reflects a September 2009 private medical letter in which Dr. A.L. provided a favorable nexus opinion and a September 2016 and October 2016 VA examiner’s unfavorable opinion. The record also includes the Veteran’s lay statement regarding hearing loss. The Board notes that the September 2009 letter is not accompanied by a report of an examination, and as a result, it is unclear as to whether the Veteran demonstrated bilateral hearing loss for VA purposes at the time of the letter. 38 C.F.R. § 3.385. Further missing from the record is direct discussion of Dr. A.L.’s September 2009 findings in the September 2016 or October 2016 VA opinions. Notably, the opinions are void of any direct consideration and discussion of the Veteran’s service-connected tinnitus and any etiologically same or similar causation of his claimed bilateral hearing loss. The September 2016 VA examiner essentially stated that the evidence is that the Veteran denied having hearing loss at the time of his separation and as to other statements or opinions to the contrary, the evidence speaks for itself, without providing any further discussion of the Veteran’s lay statements in regard to his post military service employment. Thus, in accordance with the Court’s remand order, the Board finds that remand is warranted to obtain a supplemental examination that reflects direct discussion of consideration that the Veteran’s hearing loss has the same etiology as his service-connected tinnitus, as well as the other medical and lay evidence of record. The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and etiology of his bilateral hearing loss. The applicable record shall be made available to the examiner, including a copy of this remand. The examiner must indicate review of the record. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must give consideration to and directly address the evidence, including the Veteran’s in-service noise exposure, prior hearing evaluations, lay statements, service-connected tinnitus disability and the possibility of the same etiology of his claimed bilateral hearing loss, and the September 2009 private medical letter provided by Dr. A.L. The examiner must answer the following questions: (a) Is the Veteran’s bilateral hearing loss at least as likely as not related to an in-service injury, event, or disease, to include in-service noise exposure? (b) Is the Veteran’s bilateral hearing loss of the same etiology as his service-connected tinnitus? If determined to be of different etiologies, please identify the etiology of the Veteran’s bilateral hearing loss, if possible. A complete rationale for the opinion is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.