Citation Nr: 21011710 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-40 525 DATE: March 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1973 to January 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the record and has been reviewed. In October 2018, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current hearing loss is the result of hazardous noise exposure in service. The Board notes that this claim was remanded in October 2018 for additional development. Specifically, the Board requested another VA medical opinion on the etiology of the Veteran’s hearing loss. The examiner was directed to address and consider the Veteran’s in-service and post-service noise exposure. See October 2018 Board Decision. In October 2019, a VA Examination was completed. The examiner gave a negative opinion that the Veteran’s hearing loss was due to military service. See October 2019 VA Examination. The examiner noted that the entrance and separation hearing thresholds were normal. Id. The examiner also noted that post-service audiograms showed mild to moderate hearing loss for both ears. Id. The examiner opined that “a noise induced hearing loss will not progress once it is stopped.” Id. Therefore, the examiner found that the Veteran’s current hearing loss is less likely than not related to military noise exposure. Id. In July 2020, an addendum opinion was completed. The examiner gave a negative opinion that the Veteran’s hearing loss was due to military service. See July 2020 VA Examination Addendum. The examiner noted that the entrance and separation hearing thresholds were normal. Id. The examiner reasoned that according to the Institute of Medicine’s Landmark Study on Military Noise Exposure, “there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” Id. In September 2020, another addendum opinion was completed. The examiner gave a negative opinion that the Veteran’s hearing loss was due to military service. See September 2020 VA Examination Addendum. The examiner noted that the entrance and separation hearing thresholds were normal. Id. The examiner agreed with the research article the Veteran submitted that found that once noise induced hearing loss begins, it does not stop. Id. However, the examiner opined that since hearing loss was not documented during service for the Veteran, his hearing loss could not be presumed to worsen with time. Id. The examiner also opined that although not all hearing thresholds were tested upon the Veteran’s entrance into the military, she was able to render an opinion because separation results were within the normal range. Id. Additionally, the examiner noted that the Veteran was discharged one month following his discharge examination. Id. However, the examiner opined that there was no violation of Hensley as the Veteran would have reported noise exposure if it had happened during that month. Id. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2018 Board Decision ordered the examiner on remand to consider the Veteran’s military and post-military exposure to noise. See October 2018 Board Decision. The October 2019, July 2020, and September 2020 VA opinions fail to consider or address the Veteran’s contentions at the Board hearing or otherwise. Based on the examiner’s failure to address any of the Veteran’s reports of in service and post-service noise exposure, there was not substantial compliance with the Board’s remand instructions, so the Board must remand this matter for an addendum VA medical opinion that addresses all the evidence of record. Any etiology opinion must take into account the Veteran’s credible medical history. Therefore, a remand is necessary for an addendum opinion to discuss the nature and etiology of the Veteran’s bilateral hearing loss. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Obtain an addendum medical opinion regarding the etiology of the Veteran’s bilateral hearing loss from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file and make a notation on the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral hearing loss for VA purposes is related to an in-service injury, event, or disease, including hazardous noise. Additionally, the examiner is to address whether: it is at least as likely as not (50 percent or greater) that any hearing disability (1) began during active service, (2) manifested to a compensable degree within one year after discharge (January 1974) from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should note and account for the conceded exposure to loud noise in service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must specifically address, and reconcile to the extent possible, his or her medical opinion with the October 2019, July 2020, and September 2020 VA medical opinions. For each requested opinion above, a comprehensive rationale must be provided. All pertinent evidence, including both lay and medical, should be considered. The Veteran’s lay contention of noise exposure during service and symptoms he reported after service must be addressed in forming the etiology opinion. The examiner must also discuss the Veteran's testimony at the October 2018 Board hearing, during which he described symptoms during service and onset of problems. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.