Citation Nr: 21003806 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-18 850 DATE: January 22, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from February 1971 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran requested a hearing before a Veterans Law Judge. A review of the file indicates that the Veteran submitted a request to withdraw the hearing on June 20, 2019. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In a July 2019 decision, the Board denied the claim for entitlement to service connection for loss of teeth and denied service connection for right ear hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an order granting an August 2020 Joint Motion for Partial Remand (JMR) vacating and remanding the Board’s decision denying service connection for a right ear hearing loss. Service Connection - Right Ear Hearing Loss The Veteran has contended that that his right ear hearing loss is due to in-service acoustic trauma caused by firing weapons without the use of hearing protection. In its July 2019 decision, the Board primarily relied on the opinion provided in a January 2013 VA audiological examination to deny the Veteran’s claim for entitlement to service connection for a right ear hearing loss. However, the parties to the JMR agreed that there were several problems in the VA opinion and rationale provided. The VA examiner stated that Veteran’s right ear hearing loss was less likely as not caused by or a result of an event in military service, because the “veteran had normal hearing sensitivities in both ears at the time of the separation examination dated Apr[il] 2, 1972.” However, the examiner failed to provide an explanation as to whether Veteran’s right ear hearing loss was related to service, including acoustic trauma, and if not, why. Thus, the parties agree that the January 2013 VA examiner failed to provide a sufficiently detailed explanation for his conclusion. The January 2013 examiner based his opinion in part on the Veteran’s use of hearing protection during service; however, the Veteran reported that while firing a World War II type bazooka, his right ear plug fell out as he pulled the trigger. The parties agreed the Board needed to address this conflicting evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion “based upon an inaccurate factual premise” lacks probative value). Finally, the examiner failed to consider Veteran’s statements of continuous and worsening right ear hearing loss since service. He reported that after the in-service injury described above, his right ear hearing had “worsen [sic] thru the years.” The Veteran is competent to report hearing loss. McKinney v. McDonald, 28 Vet. App. 15, 31 (2016) (finding that the Board erred in relying on an opinion where the examiner “did not provide a clear rationale for her opinion or consider relevant evidence in formulating her opinion”)   The matters are REMANDED for the following action: Obtain an opinion, with an examination if necessary, with regard to the Veteran’s right ear hearing loss. The examiner is asked to provide a response to the following: Is the Veteran’s right ear hearing loss at least as likely as not related to service, including acoustic trauma in service? Is it at least as likely as not that the right ear hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the opinion, the examiner must address the Veteran’s report that that while firing a World War II type bazooka, his right ear plug/protection fell out as he pulled the trigger and that since this incident, his right ear hearing had worsened through the years. The absence of hearing loss at discharge from service cannot, on its own, serve as a basis for a negative opinion. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well (Continued on the next page)   as his post-service symptoms to be credible. Please provide a rationale to support the opinion(s). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.