Citation Nr: 21069864 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-11 629 DATE: November 22, 2021 REMANDED Entitlement to service connection for bilateral hearing loss (BHL) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Consistent with the Veteran's request in his VA form 9, he was scheduled for a June 2019 hearing before the Board at the Regional Office. In a May 2019 faxed statement, the Veteran withdrew his request for a Board hearing. The Board remanded this matter in May 2019 for a VA medical opinion. Entitlement to service connection for BHL is remanded. A medical opinion addressing the etiology ot the Veteran's BHL was provided in September 2021. However, the medical opinion is inadequate as the Audiologist provided both a positive and negative nexus opinion. The Audiologist determined that the Veteran's BHL was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness while simultaneously finding that a nexus of BHL and military noise exposure was not established. No attempt was made to reconcile the disparate findings. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As an inadequate medical opinion was provided there has not been substantial compliance with the Board's remand. Further, with respect to the Veteran's in-service noise exposure, which has been conceded as a result of his combat experiences, in Reeves v. Shinseki, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the combat presumption contained within 38 U.S.C.A. § 1154 (b) not only applied to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, the Board must determine whether 38 U.S.C.A. § 1154 (b) establishes the onset of chronic hearing loss during service. See Id. Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. The matter is REMANDED for the following action: Obtain an addendum opinion from an audiologist regarding the etiology of the Veteran's BHL. The entire claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that chronic bilateral hearing loss had its onset in or was otherwise related to active service. The examiner is advised that exposure to in-service combat noise trauma is conceded. The examiner is also advised that Veteran's report of experiencing hearing loss while in service is also conceded unless there is clear and convincing to contrary, and that such evidence should be identified. It is further noted that the absence of a hearing loss disability in service is an insufficient basis, alone, to establish that a hearing loss disability is unrelated to service. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.