Citation Nr: 21065105 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-49 496 DATE: October 25, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from March 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2013 and February 2015 (OSA) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in March 2020 in Portland, Oregon; a transcript is of record. This matter was subsequently remanded by the Board in November 2020. Additionally, in a May 2021 rating decision, the RO granted service connection for obstructive sleep apnea. As this grant represents a full grant of the benefits sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for right ear hearing loss is remanded. The Veteran asserts service connection for right ear hearing loss. The Veteran has a current diagnosis of right ear hearing loss (92 percent speech discrimination score) as reported in the March 2021 examination. As such, the first element of service connection is met. The Board previously found the July 2017 opinion insufficiently addressed the Veteran's contentions. As such, in the 2020 Remand, the Board directed the examiner to account for the Veteran's lay statements regarding noise exposure during service and why his hearing loss may have been delayed. At the March 2020 Board hearing, the Veteran testified about his right ear hearing loss. He explained that his left ear was exposed to noise more so than his right ear during service. The March 2021 examiner provided a negative nexus opinion. The examiner acknowledged the Veteran had a moderate probability of noise exposure in service, but there was not a shift of hearing during service, and he had normal right ear hearing in 2008. The examiner cited the Institute of Medicine Report stating that hearing loss occurs immediately. The Board finds the opinion and rationale to be incomplete as the examiner overly relied on the Veteran's hearing loss not occurring immediately in service similar to the 2017 opinion. The U.S. Court of Appeals for Veterans Claims (CAVC) has held that where there is no evidence of the Veteran's claimed hearing disability until many years after separation from service, if the evidence "demonstrate[s] a medical relationship between the [V]eteran's in-service exposure to loud noise and his current disability, it would follow that the [V]eteran incurred an injury in service...." Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also McCray v. Wilkie, 31 Vet. App. 243, 249, 257 (2019) (discussing the IOM report contained unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss). This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran's disabilities. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After associating any treatment records with the claims file from #1, then obtain an addendum opinion. Send the file to an appropriate examiner, and ask the clinician to review the claims file. If the clinician needs an in-person examination, then schedule one. Ensure the examiner has access to the claims file, to include a copy of this Remand. The examiner is to provide an opinion whether: (a.) It is at least as likely as not (probability of approximately 50 percent) that his current hearing loss for VA purposes is related to an in-service injury, event, or disease, including hazardous noise exposure from service? **Please note and account for the established noise exposure in service. Additionally, the examiner is to address the Veteran's assertions concerning why he initially had left ear hearing loss rather than bilateral as he would lift/remove one side of his ear protection. See, e.g., 05/01/2020 Hearing Transcript, at 16-18.** If the examiner relies on the 2005 IOM report regarding delayed onset of noise-induced hearing loss, per the following Court case, both the positive and negative findings in the report must be discussed. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Inform the medical professional providing the above opinion and/or conducting the examination that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.