Citation Nr: 21006116 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-00 093 DATE: February 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT As the award of entitlement to a TDIU effective August 20, 2012 represents a full grant of the benefit sought on appeal, there remains no justiciable case or controversy concerning this claim. CONCLUSION OF LAW The Veteran’s appeal for a TDIU is dismissed inasmuch as this benefit has been granted for the entire period under review. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1977 to October 1981. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded these claims back to the Agency of Original Jurisdiction (AOJ) for further development and consideration, and a July 2020 rating decision of the Decision Review Operations Center (DROC) since issued, on remand, granted a TDIU retroactively effective from August 20, 2012, so back to when the Veteran’s service-connected disabilities met the threshold minimum schedular rating requirements for this benefit. See 38 C.F.R. § 4.16(a). The Board resultantly is dismissing the appeal of this claim. Entitlement to a TDIU is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As already alluded to, because this claim has been granted during the pendency of this appeal, there is no remaining justiciable case or controversy concerning this claim, as contemplated by 38 U.S.C. § 7104. Consequently, in the absence of any justiciable question, the appeal of this claim is summarily dismissed. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, another remand of this remaining claim is required. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In May 2019, the Board remanded this claim to obtain a new VA medical opinion as the February and April 2012 VA medical opinions were inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Pursuant to the May 2019 Board remand, a January 2020 VA medical opinion was obtained. The examiner opined that the Veteran’s hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the examiner noted that audiograms in service were within normal limits, including a separation audiogram on October 5, 1981. The examiner further noted the following: In the [Compensation & Pension] C&P evaluation that was performed on 2-29-2012, it was noted that the [Veteran] did not begin showing hearing loss until 2007, over 25 years after separating from the military making it unlikely that noise exposure caused hearing loss during service. The [Veteran] reports to have used power tools and hunted following military service, which may have been a contributing factor to his current hearing loss. He served for four years as a radio teletype operator, which has a moderate probability of hazardous noise exposure. But even this most recent medical opinion is inadequate. As explained in the Board’s May 2019 remand, the absence of in-service evidence of hearing loss is not fatal to the claim. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for hearing loss that first met the regulation’s requirements after service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service – as opposed to intervening (“intercurrent”) causes, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) Additionally, the January 2020 VA examiner states that the Veteran’s post-service use of power tools and hunting may have been a contributing factor to his current hearing loss. The Board finds the examiner’s use of speculative language “may have been” renders the opinion inadequate as it only suggests a possible relationship but not a probable one. See 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility); see generally Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder “may or may not” be related to service is too speculative to establish any such relationship); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician’s statement framed in terms such as “may” or “could” is not probative). In light of these deficiencies, even in this most recent opinion, the Board finds that still more medical comment is needed concerning the origins of the Veteran’s bilateral hearing loss – including especially in terms of whether related or attributable to his military service. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that RO compliance with remand directives is not optional or discretionary and the Board errs, as a matter of law, when it fails to ensure remand compliance). Accordingly, this claim again is REMANDED for the following still additional development and consideration: 1. Obtain and associate with the claims file any outstanding VA treatment records for the Veteran from the VA Medical Center in Topeka, Kansas, and all associated outpatient clinics, dated from June 2020 to the present. All attempts to secure this additional evidence must be documented in the claims file. 2. After obtaining all additional treatment or other relevant records, forward the Veteran’s claims file to an appropriate examiner for further medical comment (another addendum opinion) concerning the origins of his bilateral hearing loss.   After review of the service and post-service medical evidence of record, and the lay statements of record, the examiner is asked to indicate whether the Veteran’s bilateral hearing loss is at least as likely as not (50 percent probability or more) etiologically related to his active military service, including especially to the noise exposure he had while serving as a radio teletype operator. In rendering this opinion, it is essential the examiner provide explanation (rationale) – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. To this end, the examiner must remain mindful that the mere fact that the Veteran’s examinations in service, including at time of discharge, showed that his hearing was within normal limits is not necessarily fatal to his claim and cannot be the only basis for disassociating his current hearing loss from his service. Applicable case law establishes that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, and that it is only required the Veteran now have sufficient hearing loss according to 38 C.F.R. § 3.385 to, in turn, be considered a ratable disability and have attribution of this present-day hearing loss to his service, as opposed to intervening (“intercurrent”) causes or factors. See Hensely v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, if, as the January 2020 VA compensation examiner essentially concluded, there is no such thing as “delayed-onset” hearing loss, there must be more explanation of why there is not – including in terms of why hearing within normal limits in service is significant, including at time of discharge, or why there was not a significant threshold shift in the Veteran’s hearing during his service to consider it noteworthy. Also, if the Veteran’s activities since service – such as using power tools and hunting, are also significant, the relationship between these other activities during the years since his service and his present-day hearing loss must be posited with more certainty than mere theoretical possibility (the January 2020 VA examiner said they “may have been”, which is insufficient to conclude they are). If the reviewing clinician deems additional examination of the Veteran is necessary to render this additional comment, an examination should be scheduled. This is left to the examiner’s discretion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.