Citation Nr: 21064502 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-40 376 DATE: October 20, 2021 REMANDED Service connection for bilateral hearing loss, to include as secondary to the service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to December 1970. This current matter was previously before the Board of Veterans Appeals (Board) in March 2020, when it was remanded for further development. Regrettably, for the reasons discussed below, the Board finds that there has not been substantial compliance with all of the March 2020 remand directives. Thus, an additional remand is necessary. In accordance with the March 2020 remand, the Veteran was afforded a new VA examination in July 2020. The Board's March 2020 remand directives instructed the examiner to discuss the Veteran's statements regarding the onset and continuity of his hearing loss symptoms. Unfortunately, the examiner failed to address the Veteran's competent statements regarding the onset and continuity of such symptomatology. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is neither optional nor discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). The Board's failure to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Board sincerely regrets the delay associated with another remand but finds that this remand is necessary to ensure substantial compliance with the Board's prior remand order. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature, extent, and etiology of his bilateral hearing loss. The Veteran's electronic claims file must be accessible for review by the examiner in conjunction with this examination, and the examiner should acknowledge such review in the examination report. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed, and the results should be reported in detail. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Is it at least as likely as not (50% probability or greater) that the Veteran's bilateral hearing loss onset during, or is otherwise related to his active service, to include his conceded in-service noise exposure? Why or why not? b) Is the Veteran's bilateral hearing loss at least as likely as not (50% probability or greater) proximately due to his service-connected tinnitus? c) Is the Veteran's bilateral hearing loss at least as likely as not (50% probability or greater) aggravated, i.e., worsened beyond its natural progression, by his service-connected tinnitus? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. Specifically, the examiner must consider and discuss the Veteran's competent statements regarding the onset and continuity of his bilateral hearing loss symptomatology and all other lay statements. The examiner is also advised that a finding that the Veteran's bilateral hearing loss was not significant enough to be considered disabling at separation is not, by itself, a sufficient rationale for an opinion that a relationship to service is less likely than not. The examiner must also discuss the fact that the Veteran's hearing acuity was not tested during his May 1970 separation examination and that only a whisper voice test was obtained. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for the scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.