Citation Nr: 21010293 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-04 242 DATE: February 24, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision that denied service connection for bilateral hearing loss on the basis that new and material evidence had not been submitted to re-open the claim. The claim was originally denied in an October 2006 rating decision, which became final when it was not appealed within the one-year appellate period. In the Board’s April 2016 decision, it granted the Veteran’s petition to re-open the claim finding new and material evidence in the form of statements, testimony, and VA treatment records that diagnosed the Veteran with hearing loss. The April 2016 decision remanded the claim for service connection for an examination to determine the etiology of the Veteran’s hearing loss. In the Board’s December 2017 decision, the Board remanded the claim for further development as it found that the examinations of record were inadequate to adjudicate the claim. The Board notes that the Veterans Law Judge who took testimony from the Veteran in the October 2015 hearing retired. In keeping with Board policy, the Veteran was sent a letter in January 2020 explaining that she has the option to give testimony before another Veterans Law Judge, or if she did not reply to the letter her claim would proceed to adjudication. The Veteran did not request another hearing within the prescribed 30-day period. Accordingly, the claim can proceed to adjudication. This matter was previously before the Board in March 2020 when it was remanded for procedural and evidentiary developments. The Board finds that the remand directives have not been substantially complied with and therefore will remand the matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for left ear hearing loss is remanded. In March 2020, the Board directed that a VA medical opinion be obtained to determine the etiology of the Veteran’s left ear hearing loss. Specifically, the examiner was asked to provide an opinion on: Whether it is as least as likely as not that the Veteran’s left ear hearing loss was caused by or incurred during her active service; (2) whether it is as likely as not that her left ear hearing loss was proximately due to or caused by any service-connected disability, to include the Veteran’s service-connected TBI; and (3) lastly whether it is as likely as not that her left ear hearing loss was aggravated by (i.e., worsened beyond the natural progression of that disease) any service-connected disability to include the Veteran’s service-connected TBI. Pursuant to this remand, the Veteran was afforded a VA examination in August 2020. The examiner confirmed a diagnosis of left ear sensorineural hearing loss, and opined that the Veteran’s left ear hearing loss is less likely than not caused by service, and less likely than not proximately due to or aggravated by the Veteran’s service connected TBI. The rationale explained that entrance and separation audiological examinations both indicate normal bilateral hearing, that there is no indication of a significant threshold shift from entrance to separation, and that after service, in August 2006, the Veteran underwent a hearing examination which indicated normal bilateral hearing. The rationale went on to explain that the Veteran reported experiencing sudden hearing loss in the left ear in November 2010, which occurred many years after separation from service, and that outside of service, there is no additional evidence of hazardous noise exposure in the Veteran’s file. As such, hearing loss in left ear is less likely due to service. Regarding the opinion for secondary service connection, though the examiner acknowledged the fact that hearing loss is a common side effect of TBI, and further noted that there is no additional evidence of hazardous noise exposure in the Veteran’s file outside of her exposure in service, the examiner rationalized that a 5-year delayed onset of hearing loss between the Veteran’s 2005 fall which resulted in a TBI, and her 2010 incident of sudden hearing loss is highly unlikely. Concerning aggravation, the examiner repeated the same narrative. The Board finds that its March 2020 remand directives have not been substantially complied with to the extent that the August 2020 VA opinion fails to reconcile the examiner’s conclusion that the Veteran’s left ear hearing loss is not proximately due to, or the result of her service-connected TBI, with the examiner’s acknowledgment that hearing loss is a common side effect of TBI, and the fact that there is no evidence of hazardous noise exposure other than that in service. This rationale is insufficient to support its conclusions. Thus, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the same VA examiner who conducted the August 2020 VA examination for hearing loss. If this examiner is no longer available, obtain another 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 made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner is asked to provide an opinion on: (1) whether it is as likely as not that the Veteran’s left ear hearing loss was caused by or incurred during her active service; (2) whether it is as likely as not that her left ear hearing loss was proximately due to or caused by any service-connected disability, to include the Veteran’s service-connected TBI; and (3) lastly whether it is as likely as not that her left ear hearing loss was aggravated by (i.e., worsened beyond the natural progression of that disease) any service-connected disability to include the Veteran’s service-connected TBI. If the August 2020 examiner provides the opinion, the examiner should reconcile her negative secondary service connection opinion to TBI with the facts that hearing loss is a common side effect of TBI, and that the record is silent for any other hazardous noise exposure, other than that in service. (Continued on the next page)   A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.