Citation Nr: 21074303 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-42 616 DATE: December 14, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from July 1968 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. This claim has been previously before the Board in June 2017, February 2019, and September 2020, where it was remanded for additional development. The Board notes that there was not substantial compliance with its September 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran contends that his current bilateral hearing loss is directly related to the acoustic trauma he experienced during active duty service. After review of the record, the Board regrettably finds that additional development is necessary prior to readjudication of the claim. The record includes several VA examinations and medical opinions regarding the Veteran's bilateral hearing loss, all of which have been deemed inadequate for adjudicative purposes. See BVA Decisions, June 2017, February 2019, and September 2020. As a result of these inadequate medical opinions, the Board remanded the Veteran's claim in September 2020, specifically requesting that an addendum VA medical opinion be provided that adequately determines the current nature and etiology of the Veteran's bilateral hearing loss, as well as, comply with the Board's February 2019 remand directives. See BVA Decision, September 2020. However, a review of the file reflects that no such medical opinion has been provided. In fact, the evidence reveals that VA has repeatedly requested VA examinations to be completed in order for a medical opinion to be given, all of which have been cancelled by the Veteran and/or VA, as he has repeatedly and vehemently stated that he is homebound and cannot attend a VA examination. The Board in its September 2020 decision also noted the Veteran's inability to participate in an examination, which led to the specific request for a medical opinion only. Nevertheless, despite these assertions, and despite the September 2020 Board remand directing a medical opinion be provided (not a VA examination), the VA has failed to satisfy such request, relying on the Veteran's requests for cancellation, in which the Board notes was only requested due to VA's numerous inappropriate requests for examinations that would be impossible for the Veteran to attend. In November 2021, the Veteran's representative noted VA's failure to comply with the Board's September 2020 remand by ordering VA examinations instead of medical opinions, and therefore, requested a remand for completion of this action, pursuant to Stegall. See Appellate Brief, November 2021. The Board here agrees. Therefore, as the record does not indicate that a VA medical examiner noted that the requested medical opinion must be completed in conjunction with an actual examination, coupled with the record being void of an adequate etiology opinion, the Board finds that a remand is necessary to afford the Veteran such medical opinion, prior to readjudication of the claim and in compliance with Stegall. Moreover, the Board notes that the Veteran's entrance examination notates he had defective hearing, in which a review of the audiometer results reveals he met hearing loss for VA purposes in the left ear, and thus, would constitute a preexisting condition. However, to date, a VA medical opinion that adequately addresses the Veteran's pre-existing left ear disability under the clear and unmistakable standard has not been provided (noting the inadequacy of the October 2019 VA medical opinion for this reason). Therefore, a VA medical opinion that sufficiently addresses this must be provided prior to readjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his bilateral hearing loss and obtain any outstanding records and associate them with the Veteran's claims file. Provide the Veteran with addendum VA medical opinions by an appropriate clinician to assess the nature and etiology of his current bilateral hearing loss. DO NOT SCHEDULE THE VETERAN FOR A VA EXAMINATION. If a VA examiner deems it necessary that a VA examination be provided in order for the addendum VA medical opinions to be completed, the VA examiner must explicitly state so, and this must be uploaded to the Veteran's claims file for review. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The examiner must address: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss had its onset during any period of active duty service, or is otherwise etiologically related to his service, to include the conceded in-service noise exposure in the form of mechanical noise from tanks, artillery, and vehicles while working as a mechanic. Please note: the examiner must address the Veteran's contentions concerning the magnitude of noise exposure experienced during service, the December 2018 private medical opinion, and the contention that his tinnitus is a symptom of his hearing loss. (b) Opine whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's left ear hearing loss existed prior to his entrance into active duty. (c) If so, opine whether there is clear and unmistakable (obvious and manifest) evidence that the preexisting left ear hearing loss did NOT undergo an increase in severity beyond the natural scope of the disability during any period of the Veteran's active duty service. Please note: the examiner must address the Veteran's contentions concerning the magnitude of noise exposure experienced during service. (d) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss had its onset during any period of active duty service, or is otherwise etiologically related to his service, to include the conceded noise exposure in the form of mechanical noise from tanks, artillery, and vehicles while working as a mechanic. Please note: the examiner must address the Veteran's contentions concerning the magnitude of noise exposure experienced during service, the December 2018 private medical opinion, and the contention that his tinnitus is a symptom of his hearing loss. (d) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (Continued on the next page) (e) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.