Citation Nr: 21073029 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-43 775 DATE: December 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from September 1973 to September 1976, including service in Korea. This matter comes to the Board of Veterans' Appeals (the Board) following a January 2013 rating decision in which the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss was caused by in-service noise exposure to loud noises, such as gunfire, artillery, and engine noises from tanks and other armored vehicles. This appeal was most recently before the Board in August 2021 when it was remanded for a new VA examination and medical opinion. In particular, the Board concluded that, because the Veteran did not have a hearing loss disability noted upon his entry into military service, the presumption of soundness attached with respect to this condition. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Further, the Board remanded the claim for a VA examination and medical opinion that addressed the appropriate legal standard (clear and unmistakable evidence). See Wagner, 370 F.3d at 1096. The Veteran received a new VA examination in September 2021; however, as will be explained, the examination did not substantially comply with the Board's August 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In particular, the examiner's opinion conflates the evidentiary standards for direct service connection and rebutting the presumption of soundness. Specifically, the examiner concluded that the Veteran's hearing loss was less likely than not related to military service. In his rationale, he explained that the Veteran's entrance and separation exams were silent for a significant threshold shift, "which would have made a clear and unmistakable case for hearing loss due to his military service." These conclusions, however, fail to adequately rebut the presumption; instead, it placed the burden on the Veteran to demonstrate onset and/or aggravation during service. As the examiner did not apply the correct evidentiary standards as outlined in the August 2021 remand directives, another remand is necessary so that a new medical opinion can be obtained. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from someone other than the examiner who performed the May 2021 and September 2021 VA examinations to determine whether the Veteran's bilateral hearing loss is related to his military service. The record and a copy of the Remand must be made available to the opinion provider. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Following a review of the entire record, the examiner should address the following: a) Is there clear and unmistakable (obvious, manifest, and undebatable) evidence that a right and/or left ear hearing loss disability, which was not noted upon entrance, see September 1973 entrance examination, preexisted the Veteran's period of active service? For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2020). b) If there is clear and unmistakable evidence that the Veteran's right and/or left ear hearing loss disability predated his military service, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the disability WAS NOT aggravated (i.e., worsened) during the Veteran's active service? c) If the answer to either question a) or b) is "NO," then you must assume as true that the Veteran was sound upon entrance and that any hearing loss disability did not preexist his military service. With this understanding, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right and/or left ear hearing loss had its onset in or is otherwise etiologically related to his active service, to include reports of exposure to loud noises from gunfire, artillery, and engine noise from tanks and other armored vehicles? In this regard, please note that the Court has recognized that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. A complete rationale must be provided for all opinions provided. 2. Thereafter, readjudicate the appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.