Citation Nr: 21063923 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 13-30 583 DATE: October 18, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from January 1972 to August 1975. In January 2017, the Veteran and his spouse testified before a Veterans Law Judge (VLJ) at a videoconference hearing; a transcript of which is of record. The VLJ who conducted the hearing is no longer available to participate in this appeal. By way of a September 2021 letter, the Veteran was notified of such, and was offered the opportunity to have a new hearing. The Veteran did not respond to the letter within 30 days, and therefore the Board will proceed with adjudication. The Board denied the Veteran's claim for service connection for right ear hearing loss and remanded the claim for a TDIU in a September 2019 decision. The Veteran appealed that decision to the Court of Appeals for Veterans' Claims (Court), and in October 2020, the Secretary and the Veteran filed a Joint Motion for Partial Remand (JMPR) which was granted by the Court in an October 2020 Order. The parties to the JMPR determined that the Board failed to ensure that VA fulfilled its duty to assist in providing an adequate examination to the Veteran. Accordingly, the case was again before the Board in March 2021, at which time the Board remanded both issues on appeal for development consistent with the terms of the JMPR. Unfortunately, for the reasons that follow, the Board finds that there has not been substantial compliance with the JMPR, such that remand is again warranted. In this regard, the JMPR noted that the VA medical examiners who provided the July 2011, May 2014, and May 2019 VA examinations, provided facts and drew conclusions, but did not provide rationales as to why it was less likely than not that the Veteran's hearing loss was related to in-service, rather than post-service, noise exposure. Accordingly, VA obtained an additional VA examination in May 2021. Unfortunately, the rationale offered is nearly identical to that provided in the May 2014 opinion. The examiner again, offered facts and drew conclusions, but still did not adequately explain why the Veteran's current right ear hearing loss is unrelated to in-service noise exposure. Like the prior opinions, the May 2021 examiner discussed the Veteran's post-service noise exposure, concluding that the Veteran's right ear hearing loss was due to that noise exposure versus the in-service noise exposure. However, notwithstanding the examiner's conclusion that the Veteran may have had post-service noise exposure, with or without hearing protection, there is still no adequate medical rationale supporting the conclusion that the current hearing loss is unrelated to the noise exposure sustained in service. Simply stating that the Veteran separated service in 1975 with normal hearing in the right ear, without discussing the clinical significance of such normal test results, is not a sufficient rationale. Thus, on remand, another opinion should be obtained addressing whether the Veteran's current right ear hearing loss is at least as likely as not related to in-service noise exposure. If the examiner again concludes that right ear hearing loss is more likely than not related to post-service noise exposure, there must be a medical rationale for that conclusion. The Board adds that the consideration of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, as the outcome of the service connection claim may impact the outcome of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an examiner other than the one who provided the May 2019 and May 2021 opinions. The selected examiner must review the entire claims file, and then respond to the following: Is it at least as likely as not (approximately 50 percent probability) that the Veteran's right ear hearing loss had onset in, or is otherwise related to the Veteran's conceded in-service noise exposure? The examiner is advised that the finding of normal hearing at discharge, in and of itself, is not an adequate basis for supplying a negative nexus opinion. However, if normal in-service audiometric test results are relevant to the response to this question, the examiner must explain the clinical significance of such results and how they inform the conclusion reached. A clearly-stated rationale based on consideration of all pertinent lay and medical evidence should be provided for any opinion offered. (Continued on Next Page) 2. Then, readjudicate the issues on appeal, to include entitlement to a TDIU. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.