Citation Nr: 21077070 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-25 320 DATE: December 28, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from March 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran appeared at a Board hearing before a Veterans Law Judge. A transcript of the hearing is in the record. In November 2012, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the November 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2013 Order, the Court vacated the Board's decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR) of the parties (VA Secretary and the Veteran). Pursuant to the November 2013 JMR, the issues were remanded for further development by the Board in April 2014, March 2015, and September 2015. In September 2016, the Board again denied the claims. The Veteran appealed to the Court. In a July 2017 Order, the Court vacated the Board's decision and remanded the case to the Board for development consistent with the JMR. In November 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for development consistent with the July 2017 JMR. An April 2019 Board decision again denied the claims, and the Veteran appealed to the Court. The Court vacated the April 2019 denials in a February 2020 Order and remanded the case to the Board for development consistent with the February 2020 JMR. In August 2020, the Board remanded the issues on appeal for additional development. In April 2021, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in July 2012 was no longer employed at the Board and advised him that he had a right to a new hearing before another VLJ that would decide his case. See 38 U.S.C. § 7107(c) (2012) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). Later that month, the Board received correspondence indicating that the Veteran did not wish to appear before another Board hearing and desired a decision based on the current record. The Board remanded the claims again in May 2021 for further development. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his bilateral hearing loss is related to his military service. As noted above, this matter was previously before the Board in May 2021 and was remanded for further development. Specifically, the Board directed the AOJ to obtain a new VA examination to determine the Veteran's actual current hearing loss condition and address whether the Veteran's claimed in-service ear infections (due to hearing protection he was required to wear) aggravated his pre-existing right ear hearing loss or caused or contributed to his left ear hearing loss. In response, the June 2021 VA examiner stated that he was not qualified to opine on ear diseases and stated it should be referred to a medical doctor. Subsequently, however, the claim was not referred to a medical doctor, and there has been no opinion on the matter in contravention of the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Instead, the AOJ obtained an addendum opinion in September 2021 from the June 2021 examiner wherein he opined that the Veteran's bilateral hearing loss was less likely than not related to his hearing loss. Given that the June 2021 VA examiner indicated that he did not have the appropriate expertise to offer an opinion in this matter, the Board finds that the Veteran should be afforded a new examination. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). On remand, the AOJ should obtain an outstanding VA treatment records. Further, the AOJ should give the Veteran the opportunity to identify or submit any further evidence in support of his appeal. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then forward the record and a copy of this Remand to a suitably qualified VA examiner for completion of an addendum opinion. A new examination should be scheduled if necessary, to provide an adequate opinion. The examiner must review the entire record on appeal, to include the Veteran's lay statements. (a.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss is related to an in-service injury, event, or disease, including the Veteran's claimed in-service ear infections. (b.) Was the Veteran's right ear hearing loss aggravated or permanently worsened beyond the natural progression of the disorder during service, to include by in-service ear infections? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, readjudicate the issues on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.