Citation Nr: 21008196 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-44 681 DATE: February 12, 2021 REMANDED Entitlement to service connection for the Veteran’s bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served in active duty from April 1991 to April 1995. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from March 2017 rating decision by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran timely appealed the March 2017 rating decision denying entitlement to service connection for his bilateral hearing loss. The claim was also denied by the Board in a March 2019 decision, which was timely appealed by the Veteran to the United States Court of Appeals for Veterans Claims (“CAVC”). CAVC granted a Joint Motion for Partial Remand (“JMPR”) in September 2020, which vacated the parts of March 2019 Board decision denying entitlement to service connection for the Veteran’s bilateral hearing loss and remanded the matter for re-adjudication consistent with the terms of JMPR. Entitlement to service connection for the Veteran’s bilateral hearing loss is remanded. In denying the entitlement to service connection for the Veteran’s bilateral hearing loss, the Board relied on a January 2017 VA examination and opinion, which determined that the Veteran’s bilateral hearing loss was less likely than not related to his military service. In the JMPR, the parties agreed that the January 2017 VA examination and opinion was inadequate because the examiner did not adequately address the Veteran’s lay statements, noise exposure in service and delayed onset of hearing loss. Furthermore, both parties agreed that in March 2019 decision, the Board had found that the Veteran’s lay assertions of traumatic noise exposure and onset of auditory symptomatology were competent and credible. The parties also agreed that the Board erred in relying on the inadequate examination and did not provide adequate statement of reasons or bases as to why service connection for hearing loss was not warranted when service connection for tinnitus was granted, which warrants a remand for obtaining another examination and opinion. Accordingly, the Veteran should be afforded a new VA examination and medical opinion which addresses the nature and etiology of the Veteran’s bilateral hearing loss in compliance with the CAVC remand. The Board notes that the VA treatment records associated with the claims file are from January 1998 and onwards. Remand is also needed to take all necessary actions for obtaining all outstanding VA treatment records specifically prior to January 1998. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records including VA treatments records prior to January 1998. Request the Veteran to assist VA with locating these records, if possible. Associate these records with the claims file. 2. Then schedule the Veteran for a VA examination to evaluate his bilateral hearing loss. Then, forward the claims file including a copy of CAVC and Board remands to the examiner for an opinion. 3. All appropriate tests and studies should be undertaken. All pertinent symptomatology and findings must be reported in detail. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner is advised to address the Veteran’s lay statements and possible delayed onset of hearing loss. Also, the examiner should address the threshold shift of 20dB at 4kHz in left ear observed at the end of the Veteran’s service, which was also noted by the VA examiner in January 2017. 4. Furthermore, the examiner is advised to review the pertinent evidence in private, military and VA medical treatment records; and the Veteran’s lay statements regarding auditory symptoms, which have been found competent and credible. A clear rationale must be provided for all opinions expressed. The Board is asking whether it is “at least as likely as not” that the Veteran’s bilateral hearing loss was incurred in or caused by the reported in-service acoustic trauma instead of certainty from the examiner. The term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 5. If the examiner finds that the Veteran’s bilateral hearing loss is not related to service, then the examiner must discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page)   6. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. If the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 7. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.