Citation Nr: 21001154 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-13 618 DATE: January 7, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial noncompensable rating for left ear hearing loss is remanded. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. In January 2020, the Board remanded the issue of service connection for right ear hearing loss to obtain a new nexus opinion due to inadequacies in previously obtained opinions. The Board provided explicit instructions that the selected examiner must address medical literature submitted by the Veteran that discusses delayed onset hearing loss rather than rely solely on a 2005 Institute of Medicine study, as this approach to addressing hearing loss claims has clearly been questioned by the United States Court of Appeals for Veterans Claims; however, the post-remand March 2020 VA examiner provided a negative nexus opinion that is again based solely on the 2005 Institute of Medicine study and fails to address the favorable medical literature submitted by the Veteran. See McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). As a result, there has not been substantial compliance with the Board’s prior remand directives, requiring a remand for a new nexus opinion to ensure the decision on the Veteran’s claim is fully informed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to an initial noncompensable rating for left ear hearing loss is remanded. The initial rating assigned for left ear hearing loss is inextricably intertwined with the issue of service connection for right ear hearing loss because 38 C.F.R. § 4.85(f) requires the assignment of the lowest level of hearing loss to the nonservice-connected ear when considering the rating to assign for a single service-connected ear, as opposed to considering the actual level of impairment resulting from the nonservice-connected ear. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain an opinion on the etiology of the Veteran’s right ear hearing loss, preferably with an examiner who has not previously examined him. The selected examiner must provide an opinion addressing whether the Veteran’s right ear hearing loss disability is at least as likely as not (50 percent probability or greater) the result of in-service acoustic trauma. In the context of the opinion, the examiner must address the medical literature submitted by the Veteran that suggests a possibility of delayed onset hearing loss in certain instances, even circumstances in which it appears auditory thresholds have been “recovered” after the initial acoustic trauma. If the examiner does not explicitly address the medical literature submitted by the Veteran, the examination report must be returned to the examiner as incomplete. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.