Citation Nr: 21001075 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-03 133 DATE: January 7, 2021 REMANDED Entitlement to service connection for right ear hearing loss, to include as secondary to service-connected benign paroxysmal positional vertigo (BPPV), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 2007 to May 2007, and in the Army National Guard with multiple periods of active duty for training (ACDUTRA), active duty for special work (ADSW), and inactive duty for training (INACDUTRA). The ACDUTRA periods were from December 12 – 14, 2006; July 7 – 21, 2007; August 6 – 10, 13 – 17, 20 – 24, and 27 – 31, 2007; September 4 – 7, 10 – 14, 17 – 21, 24 – 28, 2007; November 15 – 21, and 26 – 30, 2007; December 3 – 21, 2007; January 16 – 18, and 22 – 25, 2008; February 4 – March 14, 2008; February 4 – 8, and 28, 2009; March 1 – 20, 2009; May 11 – 15, 2009; July 15 – September 12, 2010; November 6 – 12, 2010; October 3, 2012 – March 27, 2013; June 15 – 29, 2013; and August 6 – 30, 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an August 2015 hearing. This issue was previously before the Board in August 2018 and May 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, in July 2020, the RO granted service connection for hypertension. This represents a full grant of the benefits sought, and this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for right ear hearing loss, to include as secondary to service-connected BPPV, is remanded. Remand is required for substantial compliance with the May 2020 Board remand instructions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The May 2020 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA and private treatment records (PTRs). Additional VA treatment records were successfully added to the claims file in May and June 2020. In May 2020, the RO sent a letter to the Veteran requesting that he identify and authorize for release any outstanding PTRs, including those from Dr. RT, Dr. MM, and Dr. BM. The Veteran did not reply to this letter. First, remand is required for an addendum VA medical opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Per the May 2020 Board remand instructions, the RO obtained an addendum VA medical opinion in June 2020 addressing whether the right ear hearing loss was aggravated beyond the normal progression during active service or ACDUTRA, or by acoustic trauma sustained during a period of INACDUTRA. The examiner provided a contradictory nexus opinion, stating that the right ear hearing loss is at least as likely as not aggravated beyond normal progression while in service, but then provided only negative supporting rationale. The examiner noted that the earliest hearing examination on record shows a pre-existing hearing loss for the right ear. The examiner stated that a person should expect to enjoy normal hearing loss until at least their 60th birthday. The examiner also noted the Veteran’s contentions that he was exposed to excessively loud noises from weapons training, attachment to a military police unit, and his military occupational specialty of food service, but stated that noise induced damage to the inner ear hair cells is typically noted in the mid to high frequency regions, which the Veteran showed a standard threshold shift while in service. The examiner was also instructed to consider the Veteran’s additional periods of ACDUTRA or ADSW; however, the examiner appears to have focused only the time periods of January through May 2007, and September 2007, which they erroneously refer to as the Veteran’s second period of active duty, and it is unclear to which of the confirmed periods in September 2007 the examiner is referring. The examiner failed to address the results of audiograms from December 2008 and July 2013, both of which were conducted within close proximity in time to the Veteran’s periods of ACDUTRA. The May 2020 remand directives also instructed the examiner to address May 2007 audiometric findings, April 2009 STRs, April and May 2010 PTRs, and the July 2019 VA examination. Although the examiner did address each of these, they stated that the May 2007 audiometric findings were referenced, but not found in the medical records. A careful review of the record reveals that the May 2007 audiometric findings are indeed present in the claims file, located at the end of records from a May 21, 2007 outpatient visit to the Kenner Army Hospital Center at Fort Lee. Accordingly, remand is required for an addendum VA medical opinion. The Board notes that the examiner also provided a negative nexus opinion regarding service connection on a secondary basis, opining that it is less likely than not that the right ear hearing loss was caused or aggravated by service-connected BPPV. The examiner stated that the January 2007 examination shows pre-existing hearing loss, and records from 2009 through 2010 show a diagnosis of right ear hearing loss due to otosclerosis and BPPV, and that the otosclerosis was addressed by the 2010 stapedotomy surgery, and the BPPV rehabilitated completely with vestibular rehabilitation therapy. The examiner explained that otosclerosis is a hereditary condition that results in hearing loss with a conductive component, which is frequently improved with surgery, and that examinations after the 2010 surgery no longer show a conductive component. The examiner further explained that BPPV does not cause mixed or conductive hearing loss, and that the hearing loss was well-documented before the BPPV diagnosis, and is a hereditary disorder not associated with BPPV. The examiner also noted that several hearing examinations include immittance testing that shows normal tympanograms for both ears, normal otoscopic exams, normal middle ear functioning, and no diagnosis of a eustachian tube dysfunction. Second, remand is required to obtain missing treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Several VA treatment records, including entries in May, November, and December 2017, and February 2020, indicate that treatment records from outside facilities were uploaded to Vista imaging. The Board does not have access to Vista, so these records need to be separately added to the Veteran’s claims file. Accordingly, remand is required. As noted above, the Veteran failed to reply to the May 2020 letter requesting that he identify and authorize for release any outstanding PTRs, including those from Dr. RT, Dr. MM, and Dr. BM. The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO's request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where her assistance to VA is necessary). While on remand, the RO should provide the Veteran with another opportunity to provide these records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically records scanned into Vista imaging, including entries in May, November, and December 2017, and February 2020. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records to specifically include outstanding treatment records from Drs. RT and MM in Wetumpka, Alabama and Dr. BM at the Kirklin Clinic Department of Surgery. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the right ear hearing loss from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) In addition to the period of active service from January to May 2007, the Veteran’s additional periods of ACDUTRA or ADSW to be considered are as follows: December 12 – 14, 2006; July 7 – 21, 2007; August 6 – 10, 13 – 17, 20 – 24, and 27 – 31, 2007; September 4 – 7, 10 – 14, 17 – 21, 24 – 28, 2007; November 15 – 21, and 26 – 30, 2007; December 3 – 21, 2007; January 16 – 18, and 22 – 25, 2008; February 4 – March 14, 2008; February 4 – 8, and 28, 2009; March 1 – 20, 2009; May 11 – 15, 2009; July 15 – September 12, 2010; November 6 – 12, 2010; October 3, 2012 – March 27, 2013; June 15 – 29, 2013; and August 6 – 30, 2013. (b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right ear hearing loss was aggravated beyond the normal progression of the disease during active service or ACDUTRA, or by acoustic trauma sustained during a period of INACDUTRA. (c) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that right ear hearing loss was caused or aggravated by service-connected benign paroxysmal positional vertigo. (d) The examiner must address the following: May 2007 STRs and audiometric findings, and the Veteran’s statement that he had noticed hearing problems for the last 2 months; an April 2009 STR reporting the Veteran’s right ear hearing loss began 3 years prior and had progressed and the diagnosis was hearing loss and eustachian tube dysfunction; an April 2010 private treatment record documenting otosclerotic plaque in the setting of progressive right ear conductive hearing loss consistent with otosclerosis; a May 2010 private record reporting right facial pain and otalgia assessed as possible temporomandibular joint irritation and fifth cranial nerve irritation after otitis externa; and the July 2019 VA ear and vestibular examination report. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.