Citation Nr: 21067363 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-22 874 DATE: November 4, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the record and has been reviewed. In September 2020 and February 2021, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss The Veteran contends that his current hearing loss is the result of hazardous noise exposure in service. The Board notes that this claim was remanded in September 2020 and February 2021 for additional development. Specifically, the Board requested an addendum VA medical opinion on the etiology of the Veteran's hearing loss. The examiner was directed to address and consider the Veteran's reports of in service and post-service noise exposure. See September 2020 Board Decision; see also February 2021 Board Decision. The decisions requested the examiner discuss the Veteran's testimony from the October 2018 Board hearing "during which [the Veteran] described symptoms during service and [his] onset of problems." See February 2021 Board Decision. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In March 2021, a VA opinion was completed. The examiner gave a negative opinion that the Veteran's hearing loss is due to military service. The examiner noted that the entrance and separation audiograms are normal and there is no evidence that the Veteran's hearing loss manifested to a compensable degree within one year after discharge from service. The examiner noted that while the Veteran's MOS indicates a high probability of noise exposure, there is no indication of a permanent positive threshold shift due to noise exposure during military service. In July 2021, an addendum VA opinion was completed by the March 2021 examiner. The examiner again gave a negative opinion that the Veteran's hearing loss is due to military service. The examiner noted that the entrance and separation audiograms are normal and there is no evidence that the Veteran's hearing loss manifested to a compensable degree within one year after discharge from service. In rendering this opinion, the Veteran's report that he was approximately 20 feet away from an explosion was considered. The examiner noted that "[g]iven standard principles of physics sound decreased as distance from the source increases. As there was no known decibel level reported of the bomb hitting the building it is also impossible to know the decibel level the Veteran was exposed to given the reports being about twenty feet away." The Veteran also acknowledged post-service noise exposure in his civilian occupations of construction and railroad work. The examiner stated that the "Veteran indicated the use of hearing protection devices in those occupations however OSHA regulated hearing conservation programs were not put in place in the US until the 1980's." Ultimately, she opined that the medical evidence does support the possibility of difficulties understanding speech in the absence of a documented hearing loss or noise exposure. The Board finds that the VA medical opinions are inadequate as they rely on a rationale that hearing was within normal limits during active duty with no significant threshold shifts during active service and does not adequately consider or address the Veteran's contentions. According to 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Additionally, the examiner failed to address the Veteran's contentions that he was exposed to "constant shelling" and a "lot of incoming" as a Mortar Man. See October 2018 Board Hearing. As such, a remand is necessary for an addendum opinion to discuss the nature and etiology of the Veteran's bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, it must provide an adequate one). The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain an addendum medical opinion regarding the etiology of the Veteran's bilateral hearing loss from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file and make a notation on the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral hearing loss for VA purposes is related to an in-service injury, event, or disease, including hazardous noise. Additionally, the examiner is to address whether: it is at least as likely as not (50 percent or greater) that any hearing disability (1) began during active service, (2) manifested to a compensable degree within one year after discharge (November 1970) from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should note and account for the conceded exposure to loud noise in service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must specifically address, and reconcile to the extent possible, his or her medical opinion with the October 2019, September 2020, March 2021, and July 2021 VA medical opinions. For each requested opinion above, a comprehensive rationale must be provided. All pertinent evidence, including both lay and medical, should be considered. The Veteran's competent and credible lay contention of noise exposure during service and symptoms he reported after service must be addressed in forming the etiology opinion. The examiner must also discuss the Veteran's testimony at the October 2018 Board hearing, during which he described symptoms during service and onset of problems, including exposure to shelling and an explosion. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.