Citation Nr: 21004255 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-33 915 DATE: January 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected recurrent otitis media and tinnitus is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Marine Corps from August 2002 to September 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2019 the Board denied service connection for bilateral hearing loss secondary to recurrent otitis media and tinnitus. In pertinent part, the Board found insufficient evidence of a medical nexus between the Veteran’s hearing disability and military service. The Veteran appealed the Board's June 2019 decision to the United States Court of Appeals for Veteran's Claims (Court), resulting in a Joint Motion for Partial Remand (JMPR). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (the Parties) which vacated the June 2019 Board decision insofar as it denied service connection for bilateral hearing loss claimed as secondary to recurrent otitis media and tinnitus and remanded that matter to the Board for compliance with the JMPR instructions. The Parties to the JMPR agreed that the Board failed to ensure that the Veteran received an adequate examination and opinion. Moreover, the Parties agreed that the Board did not account for potentially relevant evidence in the Veteran’s medical history. The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to decide a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). An examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The parties to the JMPR agreed that the March 2018 VA examination that was relied upon by the Board was inadequate because the examiner did not account for potentially relevant evidence in the Veteran’s medical history. The VA examiner noted that “claimant had normal hearing entering the military and essentially normal hearing after the military which was seen from hearing test results from 2003, 2005, and 2009. The examiner further stated that the Veteran “may have had temporary hearing loss in the low frequencies while being treated for ear infections, but that was temporary” and concluded that “[I]f hearing loss was due to ear infections, claimant would be showing conductive hearing loss at (sic) mixed hearing loss and claimants hearing loss is sensorineural.” Id. However, the record contains an April 2016 VA audiology examination with results that showed “a very mild conductive hearing loss” on the right and the left. Given that the March 2018 VA examiner did not consider and discuss the evidence of a conductive hearing loss, the Parties agreed that the March 2018 VA opinion was not adequate as it was not based upon all relevant medical evidence of record. See Ardison, supra; D’Aries, supra. Therefore, in light of the above and in accordance with the Court’s Order,, the Board finds that remand consistent with the terms of the JMPR is necessary in order to obtain a new VA examination that adequately addresses the nature and cause of the Veteran’s bilateral hearing loss. The matters are REMANDED for the following action: 1. Contact the Veteran and her attorney and request that they provide or identify and authorize the release of any additional records of treatment ot testing for hearing loss, otitis media, or tinnitus. If obtained, associate these records with the claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records and responses received must be associated with the electronic claims file. 3. Arrange for an addendum opinion or new examination and opinion with a VA clinician with expertise in otorhinolaryngology and audiology as appropriate to examination protocols in place for the pandemic. The entire evidentiary record, including a copy of this remand and the August 2016 VA audiology examination, must be made available to and reviewed by the examiner. Upon completion of the above, the examiner is asked to respond to the following inquiries: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss, whenever diagnosed, had its onset in service or, (b) whether it is at least as likely as not (50 percent probability or more) the Veteran’s bilateral hearing loss is caused or aggravated by the Veteran’s service-connected recurrent otitis media or tinnitus, or both. The examiner is advised that the term “aggravation” is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. A clear rationale should be provided for all opinions expressed. The examiner should also comment on any functional loss attributable to the Veteran’s hearing loss. 4. Upon completion ot the development described above, the claim should be readjudicated. If the decision remains unfavorable to the Veteran, a Supplemental Statement of the Case (SSOC) should be issued, and after allowing time for review and receipt by the Veteran and her attorney, the claim should be returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.