Citation Nr: 21077438 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-23 614 DATE: December 29, 2021 REMANDED Entitlement to service connection for a right ear hearing disability is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from September 1999 to September 2003; he served in the Persian Gulf War in Southwest Asia and was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in February 2019 and April 2021, both times being remanded for a current examination. Subsequent to the last remand, the Veteran's audiometric hearing test results demonstrated a left ear hearing disability, and the RO granted service connection for the left ear. See June 2021 Rating Decision. 1. Entitlement to service connection for a right ear hearing disability is remanded. The Veteran asserts he has a right ear hearing disability because of his service-connected traumatic brain injury, which results in the functional impairment of his hearing. See, e.g. October 2021 Supplemental Informal Hearing Presentation. The Veteran reports that he has a hard time hearing people, that he must turn up the volume on the television and radio, and that he doesn't hear well with background noise. See, e.g. April 2021 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Veteran's representative advances that while the Veteran's audiometric results do not show a right ear hearing loss disability, the evidence of record is enough to constitute a "disability" for compensation purposes. See October 2021 Supplemental Informal Hearing Presentation. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the Veteran's hearing disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (Vet. App. 1998). Specifically, the April 2021 remand instructed the VA examiner to review the record, including an August 2012 VA psychiatric examination which attributed the Veteran's hearing loss to residuals of his service-connected traumatic brain injury (TBI). The hearing loss examiner was instructed to note that review in her report, and "specifically state whether [a disability] is a symptom of the service-connected TBI residuals." Furthermore, the examiner was instructed to opine whether it is at least as likely as not (50 percent probability) that any diagnosed disability was due to, or aggravated by, the Veteran's TBI residuals or any other service-connected disability. However, the April 2021 hearing loss examiner neither discussed the August 2012 VA psychiatric examination in her report, nor stated whether the diagnosed left ear hearing loss disability is a symptom of the Veteran's service-connected TBI residuals. In fact, the only mention of a TBI in the examiner's report was a fragment under "Pertinent Medical History or Diagnosis" reading "TBI military 2007." A remand is thus necessary, as the Veteran is entitled to substantial compliance with the Board's previous remand directives. See Stegall, 11 Vet. App. at 271. Additionally, the previous examiner was asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that any of the Veteran's diagnosed disabilities were connected to service. This language found in the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. Id. The matters are REMANDED for the following action: 1. The Decision Review Operations Center (DROC) should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating the documents with the file, the DROC should obtain a new opinion, to include a new examination if necessary (if and when the Veteran can attend one), as to the etiology of the Veteran's hearing loss disability. The examiner should: (a.) Review the record, including the August 2012 VA psychiatric report, which attributes the Veteran's hearing loss to his service-connected TBI. The examiner should note that they have reviewed the August 2012 VA psychiatric report. (b.) Diagnose all hearing loss disabilities found. If a hearing loss disability is diagnosed, the examiner should specifically state whether it is a symptom of the Veteran's TBI residuals. (c.) Opine whether it at least as likely as not (an approximate balance of negative and positive evidence) that any identified hearing loss disability had its onset during active service or is related to any incident of service, including the Veteran's combat experiences in Iraq. (d.) Opine whether it at least as likely as not (an approximate balance of negative and positive evidence) that any identified hearing loss disability is due to the Veteran's TBI residuals or other service-connected disabilities. The examiner should specifically discuss the August 2012 VA psychiatric report. (e.) Opine whether it at least as likely as not (an approximate balance of negative and positive evidence) that any identified hearing loss disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the Veteran's TBI residuals or other service-connected disabilities. The examiner should specifically discuss the August 2012 VA psychiatric report. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.