Citation Nr: 21065476 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-09 009A DATE: October 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from November 1967 to July 1969. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2014. The transcript has been associated with the record. In December 2019, the Board issued a decision denying the claim of entitlement to service connection for bilateral hearing loss. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC or the Court) contesting the Board's December 2019 decision. In a June 2021 Joint Motion for Partial Remand (JMPR), the Court remanded the Board's denial of entitlement to service connection for bilateral hearing loss because the Court believed that the Board failed to provide an adequate statement of reasons or bases for its decision and that the Board did not fulfill its duty to assist. Specifically, the Court found that the Board's reasoning for not considering the July 2012 VA examiner's positive opinion was erroneous since the record reflected that he did review the claims file. The Court also found that the Board erred in not addressing whether the Veteran's report of in-service tinnitus onset and the May 2015 VA examiner's conclusion that the Veteran's tinnitus was a symptom of his hearing loss indicated worsening hearing loss during service. The Court also found that the May 2015 VA examination was inadequate since the examiner claimed that it was not possible to opine whether aggravation occurred during military service since the separation examination did not have an audiological examination and that the examiner should have considered the Veteran's lay statements and buddy statements as evidence to opine on aggravation since VA had conceded in-service noise exposure. And lastly, the Court also found that the May 2015 VA examination was inadequate since the examiner did not address the diagnosis of the acquired cholesteatoma found by the July 2012 VA examiner. 1. Entitlement to service connection for bilateral hearing loss is remanded. In order to comply with the Court's remand instructions, a remand is necessary to obtain a new VA audiological examination and medical opinion. In the June 2021 CAVC decision, the Court expressed that the July 2012 VA examiner's positive opinion concerning tinnitus should have been considered and not deemed erroneous since the VA examiner had reviewed the Veteran's claims file. The Court also expressed that the Board should have addressed the probative value of the July 2012 VA medical opinion and whether the tinnitus that manifested during military service indicated worsening hearing loss during service. The Court also expressed that the May 2015 VA examination was inadequate since the examiner should have considered the Veteran's lay statements and the buddy statements as evidence to opine on whether the Veteran's hearing loss was aggravated during service. Additionally, the Court expressed that the diagnosis of acquired cholesteatoma should have been addressed by the May 2015 VA examiner. As such, a new VA examination and medical opinion is necessary. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a new and appropriate clinician for his bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Did the Veteran's bilateral hearing loss, which existed prior to service, at least as likely as not increase in severity during service? b. If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (Continued on the next page) c. The examiner must take into consideration the July 2012 VA positive opinion claiming that the Veteran's tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss and must address whether the Veteran's tinnitus indicated worsening hearing loss during military service d. The examiner must also consider the Veteran's lay statements, the buddy statements, and the diagnosis of cholesteatoma as evidence when considering whether the Veteran's hearing loss was aggravated during military service. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.