Citation Nr: 21005076 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-27 472 DATE: January 28, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1968 to February 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2008 Department of Veterans Affairs (VA) rating decision. The Board remanded the case to the Regional Office (RO) for additional development in November 2013, July 2014, March 2016, and June 2017. A Travel Board hearing was held in March 2013 before a Veterans Law Judge (who is no longer employed by the Board), and a videoconference hearing was held in September 2015 before the undersigned. A November 2017 Board decision, in pertinent part, denied service connection for bilateral hearing loss, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). An August 2018 CAVC Order granted a Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board decision as to the bilateral hearing loss matter and remanding the matter to the Board for action consistent with the terms of the JMPR. (The November 2017 Board decision also remanded to the RO a claim for a higher rating for fibromyalgia, but as the development in that matter has not been completed, it is not before the Board.) In April 2019 and August 2020, the Board remanded the case to the RO for additional development. Entitlement to service connection for bilateral hearing loss Unfortunately, the Board is compelled to return the claims file for a clarifying opinion concerning the etiology of the Veteran’s current bilateral hearing loss. The VA advisory opinion obtained in August 2020 was incomplete, for various reasons. Although it acknowledged reviewing the Veteran’s and his wife’s statements and testimony as to observed continuity of hearing loss symptoms since service, it did not discuss the significance of such lay reports, as requested by the Board’s previous remands (as a result of action required by the CAVC). Moreover, as the August 2020 opinion did not identify the etiology for the hearing loss considered “more likely” (with supporting rationale), as requested in previous Board remands, the VA sought an addendum opinion. In an October 2020 opinion, a different audiologist opined both that it was less likely than not that the Veteran’s hearing loss was the result of noise exposure on active duty and that it was “at least as likely as not” that his hearing loss was the result of noise exposure after service. (The examiner also did not discuss the significance of the lay reports of observed continuity of hearing loss symptoms since service.) This conclusion is confusing, contradictory, and non-responsive to the Board remand directives. As such, the case must be returned for an adequate opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Return the Veteran’s claims file to the VA consulting clinician who provided the October 2020 addendum opinion, or if unavailable, forward the record to another audiologist or otologist (for review and the opinion sought). The consulting provider should provide a clarifying addendum advisory opinion, addressing whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current hearing loss disability is related to his service from March 1968 to February 1970 to include as due to exposure to noise therein. (a). If the hearing loss is determined to be unrelated to service, the examiner should identify the etiology for the hearing loss that is considered to be more likely (not “at least as likely as not”) with an explanation for why that is so. (b). The consulting provider must explain the rationale for all opinions, with reference, as appropriate, to pertinent supporting factual data, supporting medical principles, and prior medical opinions. In the rationale, the provider must acknowledge, with discussion of their significance, the Veteran’s (and his wife’s) lay reports of observed continuity of hearing loss symptoms since service, and that by virtue of his military occupation (in mechanical maintenance) he likely was exposed to excessive noise in service. See, e.g., the Veteran’s statements in August 2007 (in his VA claim for disability compensation) and ib October 2008 (in his notice of disagreement, dated in August 2008 but received by VA in October 2008) and testimony of the Veteran and his wife in March 2013 and September 2015, asserting that ever since release from service there was noted hearing problems that progressively worsened over the years. (c). The provider should note that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service, but that providing a likely etiology (beyond any assertion that there was an absence of documentation of the disability in or after service) may overcome this. The provider is advised that the absence of a hearing loss disability during the Veteran’s service is not fatal to his claim. (d). If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or by the examiner lacking the necessary knowledge or training. If such is the case, the examiner should identify the further testing/specialist’s opinion/other information needed to provide the requested opinion. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.