Citation Nr: 21007567 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 190726-14165 DATE: February 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from June 1961 to July 1963. A rating decision was issued under the legacy system in January 2019 and the Veteran submitted a timely notice of disagreement. In April 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a July 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the April 2019 SOC. Therefore, the April 2019 SOC is the decision on appeal. In the July 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. In October 2019, the Board denied the claim for entitlement to service connection for bilateral hearing loss. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, the Court granted a Joint Motion for Remand (JMR) and remanded the matter to the Board for action consistent with the JMR. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is due to conceded miliary noise exposure. The September 2020 JMR found that a remand was necessary due to the Board’s reliance on an examination that is inadequate to adjudicate the claim. Specifically, the December 2018 VA examiner opined that because the separation examination shows normal hearing bilaterally and, as noise-induced hearing loss would be present at this time if incurred during military service, it is less likely than not that the Veteran’s current hearing loss was caused by or a result of military noise exposure. The parties noted that this conclusory opinion runs afoul of Hensley v. Brown, 5 Vet. App. 155, 159 as it is presumed solely on a normal separation examination. Additionally, the parties noted that there are several hearing conservation data sheets and audiological tests within the Veteran’s service treatment records (STRs) which were not considered by the examiner in rendering his opinion. The parties concluded that a remand is required for a new examination that considers the entirety of the record, to include the Veteran’s STRs and provides adequate rational for the opinions reached. Additionally, the September 2020 JMR specified that the new examination request should include instructions for the examiner to make any necessary conversion of the in-service audiometric findings from American Standards Association units to the standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Notably, with all audiometric testing conducted prior to January 1, 1967, the results were presumably reported in ASA units. For the reasons above, an adequate VA examination and nexus opinion are necessary to address the etiology of the Veteran’s diagnosed bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A remand based on this pre-decisional duty to assist error is warranted. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination with an audiologist. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the audiologist prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Notably, in a Joint Motion for Remand filed with the Court of Appeals for Veterans Claims in September 2020, the parties found that the prior December 2018 VA medical opinion that the Veteran’s current hearing loss was unrelated to service because his hearing was normal at separation was “conclusory [absent further rationale] and runs afoul of Hensley v. Brown, 5 Vet. App. 155 (1993) as it is premised solely on a normal separation examination.” The audiologist should opine as to whether the Veteran has bilateral hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385, and if so, whether it is at least as likely as not that it (1) began during active service; (2) manifested to as compensable degree within one year after discharge from service; OR (3) is related to an in-service injury, or disease, including the Veteran’s noise exposure in service. (Continued on the next page)   The audiologist must convert and address the in-service audiometric findings from American Standards Association units to the standards set by the ISO-ANSI. The audiologist must also address the in-service hearing conservation data and any shifts in hearing thresholds. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.