Citation Nr: 21005866 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-55 659 DATE: February 2, 2021 ISSUE Entitlement to service connection for hearing loss disability. REMANDED Entitlement to service connection for hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1958 to October 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. When this case was previously before the Board in July 2019, it was decided in part and remanded in part for additional evidentiary development. The Board recognizes the matter of whether service connection is warranted for malignant skin neoplasm is on appeal and was remanded by the Board in July 2019 and October 2020. As the RO is actively working on this matter, the Board will not address it at this time, and it will be addressed in a separate decision. Pertinently, entitlement to service connection for hearing loss disability was denied in the July 2019 Board decision. The Veteran timely appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020 the Court granted a Joint Motion for Partial Remand (JMPR). Specifically, the Court found that remand was required to obtain an addendum opinion that addressed whether the conceded in-service acoustic trauma caused the Veteran’s current hearing loss, even assuming findings of hearing within normal limits at separation. To this point, the Veteran was afforded an audiological VA examination in September 2014. The examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or a result of an event in military service. The examiner’s rationale was based on the Veteran’s service treatment records which showed normal hearing in both ears on the entrance and separation examinations, and there was no significant threshold shifts in the Veteran’s hearing while he was in service. The Board notes that regulations do not preclude service connection for current hearing loss which first met VA’s definition of disability after service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.). As such, the Board finds that an addendum opinion should be obtained on remand. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the September 2014 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s claimed hearing loss disability is related to his period of active duty service; to include in-service acoustic trauma. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for a hearing loss disability where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, supra. 2. Upon completion of the addendum ordered above, review the opinion to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.