Citation Nr: 21002877 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-33 245 DATE: January 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, including secondary to service-connected tympanic membrane, is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from October 2002 to October 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2018, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). Service Connection- bilateral hearing loss First, remand is required to comply with the April 2019 Board remand directives. 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. In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Board remanded the issues in April 2019 for a new VA examination and a secondary service connection opinion. The Veteran received a December 2019 VA examination. The examiner did not provide a secondary service connection opinion. A July 2020 VA addendum opinion was provided. The examiner opined that hearing loss, if present, was less likely than not related to tympanic membrane issues. The examiner did not provide an aggravation opinion. Second, remand is required for a new VA examination. VA’s duty to assist includes obtaining evidence necessary to substantiate the claim, which may include a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The December 2019 VA examination indicated the test provided was not valid for rating purposes. The examiner stated they could not obtain repeatable responses in right ear. The examiner noted they re-instructed multiple times and recommended additional testing to confirm true thresholds. The July 2020 VA opinion provider indicated the results from the December 2019 VA examination were due to malingering. However, the Board notes the December 2019 VA examiner did not indicate malingering and recommended retesting. Accordingly, remand is required for a new VA examination. 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. 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 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. 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, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss is caused or aggravated by the service-connected tympanic membrane. The examiner must address the following: 1) an October 2018 private audio examination; 2) a May 2014 letter from a treating physician contained in the Veteran’s military personnel record; and 3) the Veteran’s assertion of having hearing difficulty during service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.