Citation Nr: 21003537 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-41 225 DATE: January 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to December 1975. This matter originally comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. By way of history, this matter was remanded by the Board in November 2019 and April 2020 for additional development. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, as discussed below, in this case, the Board’s directives have not been substantially completed, and another remand is required. Id. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss manifested after noise exposure during active duty service. As noted above, in April 2020 and November 2019 decisions, the Board directed the RO to obtain a medical opinion regarding the etiology of the Veteran’s bilateral hearing loss and addressing the Veteran’s lay statements of record, noting his in-service noise exposure and his continuous reports of hearing loss since his separation from service. Pursuant to the remand instructions, in May 2020, the RO obtained a new medical opinion. The Board finds that this May 2020 VA medical opinion is inadequate because the examiner provides only an opinion that the Veteran’s post service employment could have contributed to his hearing loss and does not provide an opinion regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to service. In addition, the VA examiner once again relied primarily on the absence of contemporaneous medical records, did not consider and discuss the Veteran’s lay statements, which described his exposure to hazardous noise through weapons fire, helicopters and airplanes, did not address the Veteran’s competent lay assertions in that he wore hearing protection in all employment subsequent to service, including working for the railroad and as a shear operator, and did not address submitted medical literature. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that another addendum medical opinion is required to address the Veteran’s lay statements of record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. The AOJ should obtain a VA medical opinion from an appropriate clinician regarding the Veteran’s bilateral hearing loss. The claims file and a copy of this Remand must be made available to the examiner. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. After reviewing all available records, the examiner should: (A) Determine whether the Veteran’s bilateral hearing disability is at least as likely as not (i.e. a 50 percent probability or greater) related to active duty service. In doing so the examiner should specifically address (1) the Veteran’s military occupational specialty and lay assertions of in-service noise exposure through weapons fire, helicopters, and airplanes; (2) his continuous reports of hearing loss since his separation from service; (3) his competent reports in his Board hearing of wearing hearing protection in all post service employment, to include while working for the railroad and as a shear operator; and (4) medical literature submitted by the Veteran February 2020. See, e.g., June 2019 Board Hearing. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.