Citation Nr: 21007183 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-11 413 DATE: February 8, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1982, September 2002 to November 2002, and March 2003 to July 2003, with additional service in the Army National Guard. In July 2020, the claim was most recently remanded for additional development. The Board also notes that the Veteran is currently awaiting the scheduling of a hearing for separate appeal streams regarding increased ratings for the bilateral knees and for the lumbar spine, to include the combined 50 percent evaluation. As these appeal streams are separate and distinct from the claim being addressed herein, those matters will be addressed by the Board at a later date. Entitlement to service connection for left ear hearing loss is remanded. In July 2020, the Board remanded the current claim to obtain a VA medical opinion regarding the Veteran’s left ear hearing loss. The Board instructed that the examiner should specifically consider and discuss the Veteran’s reports of hearing loss since service and the December 2001 and April 2003 service audiograms showing impaired hearing for the left ear at 3000 Hertz and an audiometric shift at 2000 Hertz. The Board also instructed that the examiner should provide a rationale for all requested opinions. In November 2020, the Regional Office (RO) procured a VA examination and medical opinion to assess the etiology of the Veteran’s left ear hearing loss. The examiner diagnosed the Veteran with left ear sensorineural hearing loss and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran’s service examinations all showed hearing to be within normal limits and there were no reported complaints of tinnitus on his July 2003 post deployment examination. The examiner explained further that the Institute of Medicine (2006) indicates that there is an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that there was not a pre-existing hearing loss disability. The RO determined that this examination failed to comply with the Board’s remand instructions and a few days later procured a November 2020 VA addendum opinion from the same VA examiner. The examiner stated that the Veteran had hearing loss at 3000 Hertz in his left ear on his December 2001 examination and his April 2003 examination showed hearing to be within normal limits for the right ear and normal to moderate hearing loss for the left ear. The examiner explained that the Veteran did show a shift of 10 decibels at 3000 Hertz from 2001 to 2003, which was not a shift for VA purposes. Thus, the pre-existing portion of hearing loss at 3000 Hertz was not permanently aggravated by in-service noise exposure. The examiner also stated that the Veteran showed a shift at 2000 Hertz in the left ear from 2001 to 2003, but there was no loss at this frequency in 2001 and, therefore, no preexisting hearing loss to aggravate at that frequency. In spite of the RO’s attempts at obtaining an adequate VA medical opinion, the Board finds that the November 2020 VA medical opinions are not sufficient for rating purposes. In pertinent part, in the first November 2020 VA medical opinion, the examiner indicated that the Veteran’s service examinations all showed hearing to be within normal limits and there was not a preexisting hearing loss disability. However, the examiner did not otherwise consider or discuss the Veteran’s May 2001 and April 2003 service audiograms showing left ear hearing loss. Therefore, as indicated by the RO, this opinion did not comply with the Board’s July 2020 remand directives. Moreover, in the second November 2020 VA medical opinion, the examiner appears to have considered the Veteran’s relevant service treatment records. However, the examiner did not explain whether the 20-decibel threshold shift at 2000 Hertz from December 2001 to April 2003 amounted to a worsening of the Veteran’s preexisting left ear hearing loss. As such, the examiner did not provide a complete rationale for the requested opinions. See Stegall v. West, 11 Vet. App. 268 (1998). The examiner also appears to have relied completely on the absence of in-service evidence of a left hearing loss disability at 2000 Hertz and did not otherwise consider whether the Veteran’s current left ear hearing loss disability could be related to the 20-decibel threshold shift at 2000 Hertz. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Accordingly, the Board finds that remand is warranted for a new VA medical opinion consistent with the directives herein. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s left ear hearing loss. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. a) The examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran’s left ear hearing loss preexisted his periods of active duty service from August 1979 to August 1982, September 2002 to November 2002, or from March 2003 to July 2003. b) If it is determined that Veteran's left ear hearing loss clearly and unmistakably preexisted his active duty service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting disorder was not aggravated beyond the natural progression of the condition? The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In rendering the above opinion, the examiner must specifically consider and discuss whether the Veteran’s audiometric shift from December 2001 to April 2003 of 20 decibels at 2000 Hertz is related to in-service noise exposure and whether it represents a permanent worsening of a preexisting hearing loss disability. c) If the Veteran’s left ear hearing loss did not clearly and unmistakably preexist any period of active duty service, did it at least as likely as not (i.e., 50 percent probability or greater) have its onset during either period of active duty service or is it otherwise related to any period of service? In rendering the above opinion, the examiner must specifically consider and discuss whether the Veteran’s audiometric shift from December 2001 to April 2003 of 20 decibels at 2000 Hertz is related to in-service noise exposure and/or related to his current left ear hearing loss disability. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.