Citation Nr: 21065376 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-38 305 DATE: October 26, 2021 REMANDED The issue of entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1968 to May 1972 with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board. In June 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development following a January 2021 order of the United States Court of Appeals for Veterans Claims (Court). Specifically, the Board directed the AOJ to "obtain an addendum opinion from an appropriate clinician." Although the AOJ scheduled a VA examination for the Veteran, it did not obtain an addendum opinion from an appropriate clinician. In August 2021, the AOJ issued a Supplemental Statement of the Case (SSOC) and denied the claim of entitlement to service connection for right ear hearing loss. Entitlement to service connection for right ear hearing loss In June 2021, the Board directed the AOJ to "obtain an addendum opinion." The Board did not direct the AOJ to reexamine the Veteran in-person and specifically directed the AOJ to obtain an addendum opinion from an appropriate clinician that discussed the January 2016 VA examination and the Veteran's February 2020 testimony. Although the AOJ scheduled a new VA examination, it did not obtain an addendum opinion discussing the above evidence. The AOJ also did not document a medical opinion from an appropriate clinician stating that a new VA examination was required in order to offer an addendum opinion. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Also, when a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's right ear hearing loss and whether: (a.) It is at least as likely as not (a 50 percent probability or greater) that the Veteran's current right ear hearing loss is caused by an in-service injury, event, or disease, including in-service noise exposure? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right ear hearing loss (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Board notes that the Veteran served in the Republic of Vietnam as a police officer and hazardous noise exposure has been conceded. Attention is invited to the VA examination in January 2016 noting that the Veteran's right ear hearing loss was less likely than not caused by or a result of military service. The examiner noted hearing was normal at enlistment and separation with no threshold shifts greater than 10 decibels. The January 2021 Joint Motion for Partial Remand noted that the VA examiner failed to fully address whether the Veteran's current hearing loss is due to his in-service noise exposure or explain why a medical nexus could not be established without a threshold shift recorded in service. In addition, attention is invited to the Veteran's lay statements and February 2020 testimony noting a worsening of the hearing in his right ear several years ago but that he noticed a decrease in his hearing during service and this worsened over time, getting much worse recently. When citing medical literature, such as medical literature discussing the likelihood of delayed onset of noise induced hearing loss, any qualifications and/or limitations of the cited medical literature must also be discussed. 2. The need for another examination is left to the discretion of the examiner offering the addendum opinion. If a new VA examination is necessary, the AOJ must document the opinion of an appropriate clinician complete with rationale explaining why a new VA examination is necessary before scheduling a new VA examination. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.