Citation Nr: 21065708 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-56 162A DATE: October 27, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from August 1971 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA); this case is in VA's legacy appeals system. Entitlement to service connection for right ear hearing loss and to an increased rating for service-connected left ear hearing loss In April 2019, the Board denied the Veteran's claims for entitlement to service connection for right ear hearing loss and entitlement to an initial compensable rating for his service-connected left ear hearing loss. The Veteran appealed the April 2019 Board decision to the Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued in January 2021, the Court set aside the April 2019 Board decision and remanded both claims to the Board for further development. In August 2021, the Board remanded both claims to obtain any outstanding medical records and obtain a new VA medical opinion as to the cause of any right ear hearing loss. The Board specifically ordered the examiner to discuss evidence of in-service medical treatment for right ear pain in September 1978 and to explain the discrepancy in the record as to whether or not the Veteran's right ear experienced a significant threshold shift between enlistment and separation. Unfortunately, there has not been substantial compliance with the these remand directives. In September 2021, VA provided a new examination for hearing loss. However, the examiner was unable to obtain reliable results showing whether or not the Veteran has a right ear hearing loss disability. The opinion provided focused only on this testing difficulty and did not mention the two issues specified in the August 2021 remand order. Another remand is required to obtain an examination and opinion that comply with the August 2021 remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, because a decision on the remanded issue of service connection for right ear hearing loss could significantly impact a decision on the issue of an increased rating for left ear hearing loss, the issues are inextricably intertwined. Therefore, a remand of the claim for an increased rating for left ear hearing loss is also required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The Veteran has already been granted service connection for left ear hearing loss, but not yet for right ear hearing loss. If a diagnosis cannot be provided for the Veteran's right ear, but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. After a review of the claims file, the examiner is asked to respond to the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current right ear hearing loss disability had its onset in service or is otherwise related to it, specifically to include airplane engine noise exposure near the flight line. (Service connection is already in effect for left ear hearing loss). In doing so, the examiner MUST address: 1. The evidence showing that the Veteran sought medical treatment for right ear pain in September 1978 which was after his May 1978 separation examination but before his actual service separation; and, 2. Explain with adequate rationale whether his right ear experienced a significant threshold shift between enlistment and separation, and if not, clarify whether the checked box indicating such in the June 2016 VA examination report was a clerical error. A complete rationale must be provided for all opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must also consider the lay statements submitted by the Veteran regarding his lay observable presentation of hearing loss symptoms with his friends and family. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.