Citation Nr: 21070702 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 12-13 476 DATE: November 24, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his left ear hearing loss is related to his active service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active naval duty from August 1964 to August 1969, and again from August 1972 to May 1987, with service in the Naval Reserves from August 1969 to August 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge in a January 2013 Video Conference Board Hearing. A transcript of that hearing is of record. In a December 2019 decision, the Board denied entitlement to service connection for right and left ear hearing loss. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a September 2020 Joint Motion for Partial Remand (JMPR) filed by the parties vacating and remanding the Board's December 2019 decision denying entitlement to service connection for right and left ear hearing loss. In April 2021, the Board remanded the matter for additional development to include obtaining a new VA examination and opinion. Entitlement to Service Connection for Left Ear Hearing Loss The Veteran contends that his left ear hearing loss is due to heavy industrial noise exposure related to his duties as a construction electrician. See September 2011 statement and January 2013 hearing transcript. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regarding Holton element one, a current disability is now present. January 2010, February 2015, and October 2018 VA audiological examination reports indicate that the Veteran did not have left ear auditory thresholds required for a designation of a left ear hearing loss disability for VA purposes. However, the Veteran has since been diagnosed with a left hearing loss disability in accordance with 38 C.F.R. § 3.385 upon audiological evaluation in July 2021. Noise exposure was previously conceded by VA. Therefore, the second element of Holton is also met. See 38 C.F.R. § 3.104 (c). Regarding the presence of a nexus linking the Veteran's left ear hearing loss to active military service, there is evidence both for and against the claim. In favor of the claim is a February 2015 VA medical opinion. After noting that in-service testing of the Veteran's left ear showed positive shifts in left ear thresholds at 3000, 4000, and 6000 Hz, the examiner explained that these frequencies were susceptible to damage from noise exposure over the course of the Veteran's active military service. The February 2015 VA examiner remarked that the Veteran had in-service noise exposure from power production equipment and large generators without hearing protection. The examiner further remarked that the Veteran's post-service occupations included office work, accounting, banking, property management, and as a service officer with a Veterans service organization. The examiner noted the Veteran denied occupational and recreational noise exposure. The examiner concluded that the Veteran's left ear hearing loss is at least as likely as not related to his active duty service. Evidence against the claim includes a July 2021 VA audiological examination that determined that the threshold shifts seen in the Veteran's service treatment records was temporary. The examiner opined the Veteran's left ear hearing loss was conductive in nature and more likely due to otosclerosis. The examiner explained that otosclerosis affects the middle ear leading to conductive pathology. The Board finds that the July 2021 VA medical opinion has limited probative value. First, it is unclear from the record whether the Veteran has a diagnosis of otosclerosis. See September 2021 VA medical opinion. Second, there is no indication that the examiner considered the significance of the Veteran's military noise exposure to include exposure to power production equipment and large generators, negative post-service occupational noise, as well as negative post-service recreational noise exposure. The July 2021 VA medical opinion is at least equally balanced by the February 2015 VA medical opinion. While at the time of the February 2015 VA audiological examination, the Veteran did not meet the requirement for left ear hearing loss for VA purposes, the examiner did find a relationship between the in-service noise exposure and the Veteran's left ear hearing loss if hearing loss for VA purposes was shown. Thus, considering the totality of the evidence, to include the previously noted February 2015 positive nexus opinion, and resolving all doubt in the Veteran's favor, service connection for left ear hearing loss is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to Service Connection for Right Ear Hearing Loss is Remanded. The Veteran argues that heavy industrial noise exposure deteriorated or aggravated his right ear hearing loss disability. See September 2011 statement and January 2013 hearing transcript. Right ear hearing loss was noted on the Veteran's May 1964 pre-induction service examination. A current diagnosis of right ear hearing loss is also noted on VA examination. A July 2021 VA medical opinion was obtained to address whether there is clear and unmistakable (undebatable) evidence that the Veteran's pre-existing right ear hearing loss disability was not aggravated beyond its natural progression by his active service. Pursuant to the parties' September 2020 JMPR, consideration was to be given to service treatment records showing right ear complaints and "possible ruptured drum." Additionally, clarification was sought regarding the indication of "probable otosclerosis" and whether the conductive aspect of the Veteran's right ear hearing loss was due to in-service otosclerosis. The July 2021 VA examiner remarked that otosclerosis required a medical diagnosis from an ENT physician. The Veteran subsequently underwent a September 2021 VA examination for ear conditions, by a nurse practitioner. The Board notes that the Veteran was not scheduled for an examination with an ENT physician. Therefore, there has not been substantial compliance with the Board's remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). When VA undertakes an examination, even if not required to do so, an adequate one must be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, the Veteran must be scheduled for an examination for ear conditions by an ENT physician to the extent possible. The matter is REMANDED for the following action: Schedule the Veteran for an examination with an ENT physician, or other qualified professional, to determine the nature and etiology of any right ear condition to include otosclerosis. If an examination by an ENT physician is not feasible, an explanation should be provided. The examiner should review the claims file, including this Remand, and render an opinion as to the following: (a) Does the Veteran have a diagnosed ear condition, to include otosclerosis, or has he had otosclerosis during the time period of the claim? If not, it should be explained why this so. In providing this opinion, the examiner must address and specifically comment on the January 1987 service treatment record showing "probable otosclerosis." (b) If ear condition to include otosclerosis is shown, state whether is it at least as likely as not (a 50 percent or greater probability) that otosclerosis was incurred during or is related to the Veteran's active duty service to include the in-service ruptured right ear drum and right ear complaints? (c) Is there clear and unmistakable (undebatable) evidence that the Veteran's pre-existing right ear hearing loss disability was not aggravated beyond its natural progression by otosclerosis and/or the in-service ruptured right ear drum and/or right ear complaints? Additionally, the examiner is notified that the Veteran had 2 periods of active service, from August 1964 to August 1969 and then from August 1972 to May 1987. A complete rationale for all opinions must be provided. The Veteran's lay statements regarding worsening beyond the natural progression of the condition must be considered as well as the pertinent evidence of record. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. 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.