Citation Nr: 21011715 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-46 464 DATE: March 2, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. A Board hearing was held in October 2018. A transcript is of record. In a May 2019 decision, in pertinent part, the Board denied service connection for right ear hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a September 2020 order, the Court granted the parties’ Joint Motion for Partial Remand (JMR), vacated the Board’s decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMPR. In May 2019, the Board also remanded the issues of entitlement to service connection for right and left foot/ankle conditions, a sleep condition, and an acquired psychiatric disorder for further development, which currently remains ongoing. If, upon completion of this development, the agency of original jurisdiction is unable to favorably resolve those claims, then the appeals will be re-certified to the Board and will be addressed in a separate Board decision, if otherwise in order. In the JMPR, to satisfy VA’s duty to assist, the parties agreed that a remand for further development is warranted to determine the current severity of the Veteran’s right ear hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The issue is whether the Veteran has right ear hearing loss for VA purposes, i.e., a current disability. Consequently, on remand, a VA examination is required to determine the nature and etiology of the Veteran’s right ear hearing loss, taking into account the record evidence and accepted medical principles. 38 C.F.R. § 3.159(c)(4). Also, as raised in a September 2020 informal hearing brief, on remand, any pertinent ongoing VA treatment records should be associated with the claims file. 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for hearing loss that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right ear hearing loss. The evidentiary record, including a copy of this Remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review occurred. After examination, the examiner is asked to respond to the following: Is it at least as likely as not that the Veteran’s right ear hearing loss was incurred in, or is otherwise related to, his time on active duty service, to include reported exposure to hazardous noise while working as a wheeled vehicle mechanic? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusion. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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. (Continued on the next page)   3. Readjudicate the claim. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, Counsel 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.