Citation Nr: 21075488 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-23 731 DATE: December 20, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from July 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that his left ear hearing loss is the result of medication prescribed by VA medical personnel for his erectile dysfunction. The Board remanded this matter in April 2019 with explicit instructions for the Agency of Original Jurisdiction (AOJ) to obtain an opinion from an independent medical expert in accordance with 38 U.S.C. § 5109. A VA medical opinion was issued in January 2020. The examiner gave a negative opinion that the left ear hearing loss was due to VA treatment. The examiner (an audiologist) first noted that a professional that diagnoses and treats erectile dysfunction would be the professional to determine the relationship of hearing loss and medication in this matter. She further noted that in the rare cases of sudden onset hearing loss from vardenafil (Levitra), hearing loss occurred within a few days of taking the medications and not with binaural loss and feelings of pressure. The examiner noted that the medical records indicated that dosing ceased in June 2008 and was no longer in the prescription list as of August 2008. She also noted that the onset of hearing loss was reported to be with wax occlusion and pressure in both ears on September 1, 2008. She went on to note that there are other causes of sudden onset unilateral hearing loss which are more likely, but did not articulate these other causes. The examiner also noted that even if the hearing loss was due to medication, it was not due to (1) proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment, or (2) proximately caused by an event not reasonably foreseeable. She noted that the Veteran was prescribed one 20mg pill of Levitra twice a month and he reported taking a double dose of the medication. Furthermore, she noted that a month prior to the onset of hearing loss, the Levitra prescription was determined to be ineffective and no longer prescribed. Finally, the examiner noted that hearing loss from vardenafil is very rare and risk of hearing loss and tinnitus is well documented and advertised as a rare but possible risk, implying that it was not unreasonably foreseeable that the hearing loss could result from the medication. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ merely obtained another opinion from a VA examiner, not an independent medical expert as directed in its previous remand directives. There is no documentation with the claims file regarding the AOJ's inability to obtain an opinion from an independent medical expert. This matter involves the side effects of erectile dysfunction medication and its possible impact on the Veteran's left ear hearing loss, which was noted by the Board as a rare side effect of the medication prescribed. See April 2019 BVA Decision. This would indicate that this matter is of such a complexity to warrant an opinion from an independent medical expert. Indeed, the December 2021 VA examiner (an audiologist) stated that a professional who diagnoses and treats erectile dysfunction would be the professional to appropriately determine the relationship of hearing loss and medication in this matter. However, that was not done. As such, the Board finds that there has not been substantial compliance with its previous remand directives. As such, it must remand this matter to obtain an opinion from an independent medical expert under 38 U.S.C. § 5109. However, the Board recognizes there are resource limitations that must be considered with regard to VA's duty to assist. As such, the Board will request that the AOJ associate a formal finding with the claims file explaining its inability to obtain an opinion that has clearly been authorized by Congress under 38 U.S.C. § 5109 if such opinion cannot be obtained. The matter is REMANDED for the following action: 1. Obtain an advisory medical opinion from a suitably qualified independent medical expert not employed by VA under 38 U.S.C.§ 5109, regarding whether the Veteran's hearing loss is related to medication prescribed in the context of VA medical care. If the RO cannot obtain an opinion under 38 U.S.C.§ 5109, a formal finding must be made and associated with the claims file. The following opinions must be addressed: (a.) Is it at least as likely as not (a balance of positive and negative evidence) that additional hearing loss was caused by VA medical care including medication prescribed for treatment of erectile dysfunction? (b.) If so, is it at least as likely as not that the additional hearing loss was (1) proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment, or (2) proximately caused by an event not reasonably foreseeable? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on the next page) The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record in formulating the requested opinions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.