Citation Nr: 21072961 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-06 907 DATE: December 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to August 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Board remanded claims for service connection for tinnitus and for bilateral hearing loss to the RO for further evidentiary development. Subsequently, a September 2021 rating decision granted entitlement to service connection for tinnitus. As this constitutes a full grant of the benefit sought on appeal in regard to the tinnitus disability, there remains no issue of controversy for adjudication by the Board on that claim. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). A Supplemental Statement of the Case was also issued in September 2021, continuing the denial of entitlement to service connection for bilateral hearing loss. In an August 2021 letter, the Board notified the Veteran that the Military Order of the Purple Heart is no longer recognized an accredited Veteran Service Organization. The August 2021 letter notified the Veteran that the Board will delay action for 30 days to allow the Veteran to appoint a new representative. As the Veteran has not appointed a new power of attorney, the Veteran shall proceed unrepresented at this time. Entitlement to service connection for bilateral hearing loss is remanded. In the Board's remand directives of July 2021, the RO was directed to obtain updated VA treatment records and obtain a VA examination and medical opinion which considered the notation of hearing loss on his August 1985 separation examination and lay statements regarding in-service occurrence, and that the opinion should reflect such consideration. The notation of hearing loss was actually on the August 1985 report of medical history, not the examination. The RO obtained a VA examination and medical opinion in August 2021. The examiner concluded that the Veteran's hearing loss was less likely than not related to his in-service noise exposure because the Veteran's hearing was within normal limits at separation. However, the opinion did not address the Veteran's August 1985 statement that he had hearing loss. A remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As the RO did not obtain a hearing examination and medical opinion which fully complied with the remand directives, another remand is necessary to obtain the requested examination and medical opinion. Additionally, although the Veteran reported hearing loss in his separation medical history neither the January 2016 nor the August 2021 examinations asked the Veteran when his hearing loss began, and the onset of hearing loss is not mentioned in his correspondence or his VA treatment records. The Veteran told the 2021 examiner that his tinnitus symptoms onset in 1982 and he was granted service connection as a result; however, the examiner did not ask whether his hearing loss symptoms also began at that time. As an organic disease of the nervous system, hearing loss is presumed to be related to service if shown as chronic, or if manifested to a compensable degree within one year following separation from service, or if there is continuity of symptomatology since service. Therefore, the failure to ask the Veteran when his symptoms began renders the examination inadequate for VA purposes. Remand is necessary for a new examination and medical opinion. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's bilateral hearing loss. A copy of this remand should be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements concerning his in-service noise exposure, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during, or is otherwise related to, his active duty service, to include in-service noise exposure due to his position as a fire support specialist, and the notation of hearing loss on his August 1985 separation medical history? The examiner should ask the Veteran about his history of hearing loss, including when his symptoms of bilateral hearing loss began, and note his response. (Continued on next page) In offering any opinion, the examiner must consider the full record, to include any lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. C. Casey Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.