Citation Nr: 21068255 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-43 139 DATE: November 9, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In a May 2019 Board decision, entitlement to service connection for bilateral hearing loss was denied, because the evidence did not support a nexus between the Veteran's hearing loss and his military service. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In October 2020, a memorandum decision was issued by CAVC setting aside the Board's decision and reversing the finding that the duty to assist had been met. CAVC found that the Veteran's lay statements were the type of evidence that would support his claim for determining the etiology of his hearing loss. The Board issued a remand in May 2021 instructing the RO to obtain any outstanding medical treatment records and a VA examination to determine the nature and etiology of his bilateral hearing loss. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained outstanding medical treatment records and an August 2021 VA examination. However, the Board remand asked the examiner to comment on the contention that hearing loss examinations conducted during the Veteran's period of service and up until 2002 were not adequate to evaluate changes in hearing. The examiner was also instructed to address the allegation that there was delayed onset hearing loss and acknowledge the Veteran's statements about his hearing loss starting in service and complaints of hearing loss after service. In the August 2021 medical opinion, the examiner wrote: "VA examination findings shows that currently there is a hearing loss for VA purposes, however, as hearing maintained normalcy during service (enlistment and separation) it is opined that the present hearing loss is less likely than not due to military noise exposure. An enlistment audiogram dated 8-29-61 and a discharge audiogram dated 7-2-65 both show normal hearing. Based on the normal discharge audiogram, hearing loss was less likely than not a consequence of military noise exposure. Although there is currently a hearing loss for VA purposes, there is no medical link between hearing loss and service. In addition, there is no evidence that [omitted] the hearing loss manifested itself to a compensable degree within a year of release from service." The Board finds this medical opinion to be inadequate because it failed to address the instructions in the remand. The examiner did not acknowledge the findings of the previous VA examinations, the contention that the previous examinations were inadequate, or the Veteran's lay statements. The exam is inadequate if it does not consider all the relevant evidence of record including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the claim was remanded after a CAVC memorandum because the Veteran's lay statements were not properly considered. It is imperative that on remand that the examiner acknowledged the Veteran's contentions in compliance with the October 2020 CAVC memorandum. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss. A copy of the claims file, including a copy of this remand, must be made available to the examiner for review. The examiner is asked to review the claims file in its entirety and indicate in the record that he or she has done so. The examiner is then asked to render an opinion as to whether the Veteran's bilateral hearing loss was at least as likely as not (50 percent probability or greater) incurred in or caused by his active military service. The examiner must comment regarding the contention that hearing loss examinations conducted during the Veteran's period of service and up until 2002 were not adequate to evaluate changes in hearing. The examiner must also address the allegation that there was delayed onset hearing loss. The examiner must acknowledge the Veteran's lay statements about his hearing loss starting in service and complaints of hearing loss after service. (Continued on the next page) A clear rationale must be provided for all opinions expressed. The examiner must consider Veteran's lay statements, as well as the previous VA examinations and post-service treatment records. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion. 2. After ensuring compliance with the directives of this remand, readjudicate the claim on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.