Citation Nr: 21075196 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-40 065 DATE: December 17, 2021 REMANDED: Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1968 to November 1969. In May 2020, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for bilateral hearing loss and an acquired psychiatric disorder for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for VA examinations pertaining to his claims. In a December 2020 rating decision, the RO granted entitlement to service connection for PTSD with a 50 percent rating, effective January 23, 2013. This constituted a full grant of the benefits sought. Accordingly, the Board does not have jurisdiction over this issue, and it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In May 2020, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is associated with the claims file. Upon review of the record, the Board finds that the claim of service connection for bilateral hearing loss must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that a new VA examination and etiological opinion is warranted for the Veteran's claim. The Veteran contends that his bilateral hearing loss is related to service. The Veteran underwent a VA examination in November 2020. However, the examiner noted she was unable to obtain/maintain a seal for the left ear during the immittance (tympanometry) testing portion of the examination. Although the November 2020 examiner acknowledged that the Veteran's MOS had a moderate probability of noise exposure, she opined that the Veteran's right ear hearing loss was less likely than not related to service because there was no significant threshold shifts and hearing sensitivity remained within normal limits. She also opined that the Veteran's left ear hearing loss, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service incurrence. The November 2020 examiner explained that though 5 dB of threshold shift was noted, shifts of +/- 10 dB are more considered to reflect normal test variability and not indicative of a significant change in hearing sensitivity. Additionally, she noted that there was no complaints or reports of increasing hearing difficulty for either ear during service or within a reasonable time frame following separation from service. The Board finds the November 2020 VA examination to be inadequate. First, the November 2020 VA examiner was unable to obtain/maintain a seal during the immittance testing portion of the examination, which could have altered the examiner's opinion. Second, though the examiner noted the Veteran's left ear hearing loss clearly and unmistakably existed prior to service, she did not use the "clearly and unmistakably" standard for her opinion that the Veteran's left ear loss was not aggravated beyond its natural progression. Finally, although the examiner noted the lack of threshold shift in service, it is not clear why the examiner apparently believed that the threshold shift is the only indicator of noise-induced hearing loss. The proper inquiry here is whether the Veteran's current hearing loss is related to the Veteran's conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Therefore, the Board finds that a new examination and etiological opinion is needed that adequately addresses the likely etiology of the Veteran's bilateral hearing loss and considers his contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 3014 (2008). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file updated treatment records. 2. Schedule the Veteran for a VA examination in connection with his claim for entitlement to service connection for bilateral hearing loss. The claims file must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Based upon a review of the relevant evidence of record, the examiner should offer the following opinion: (a.) Was the preexisting left ear hearing loss clearly and unmistakably not aggravated beyond its natural progress during the Veteran's active service? In rendering such opinion, the examiner must specifically discuss the separation audiogram showing a 5db decrease in hearing acuity in the left ear at all tested levels. Compare June 2014 STR-Medical at 4 with June 2014 STR-Medical at 10. "Clear and unmistakable evidence" is evidence that is obvious, manifest, and undebatable. The term "aggravated" in this context refers to a permanent worsening of the underlying condition beyond the natural progress of the disease, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with a return to the baseline level of disability. (b.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's right ear hearing loss had its onset in or is related to service, to include moderate probability of noise exposure due to the Veteran's MOS, as well as airplane, rocket, and gunfire noises? In addition, the examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.