Citation Nr: 21071083 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-60 014 DATE: November 29, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from August 2005 to November 2006, to include service in Iraq and Kuwait. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2020. A transcript of the hearing has been associated with the record. The Board notes that these claims were previously before the Board in April 2020 and June 2021, at which times they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. As discussed below, regarding the bilateral hearing loss issue, there was not substantial compliance with the Board's June 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, another remand is warranted. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to noise exposure he experienced during his active-duty service as a gunner. As mentioned above, the Board remanded this claim in June 2021 in an effort to obtain an adequate VA addendum opinion addressing the etiology of the Veteran's bilateral hearing loss disability. Upon remand, such opinion was obtained in July 2021. Unfortunately, the July 2021 is also inadequate, and an additional remand is now necessary. The Board finds the July 2021 VA addendum opinion is unresponsive to the June 2021 Board remand and the directive that the VA examiner should specifically opine regarding the etiology of the Veteran's diagnosed bilateral hearing loss. The July 2021 VA examiner did not provide an etiology opinion because the Veteran's "hearing was normal at his exam in 2020." Additionally, the July 2021 VA examiner did not discuss the findings of the April 2014 VA examination where a VA audiologist diagnosed the Veteran with bilateral sensorineural hearing loss, which was specifically requested by the Board in its June 2021 remand. As such, an additional medical opinion addressing the findings of the April 2014 VA examination should be obtained on remand. Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's diagnosed bilateral hearing loss during the appeal period. The opinion must not state that there is no diagnosed hearing loss so there is no nexus to service. It is conceded that the Veteran has been diagnosed with bilateral hearing loss during the relevant period on appeal. The examiner is asked to review the record, specifically, the April 2014 VA audiological examination (which documents a diagnosed bilateral hearing loss disability), as provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his noise exposure during active military service. See VBMS, documented labeled C&P Exam, receipt date 04/17/2014. Even if there is no current diagnosis, there has been one during the appeal. Therefore, the opinion is required. Note that the lack of documented treatment for hearing loss in service, while probative, cannot service as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in deciding whether a nexus exists between the disability and service. Specifically, relevant is that the Veteran served in Kuwait and Iraq, functioning as a Humvee gunner and was in several gun fights during that time. He testified to not wearing hearing protection because of needing to know where enemy fire was coming from. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.