Citation Nr: 21012149 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-23 815 DATE: March 3, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1978 to September 1988 and from September 1988 to June 1990. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded the appeal for additional development in December 2017. Specifically, the Board found that the September 2010 VA examiner failed to consider the Veteran’s hearing loss during the second period of service from September 1988 to June 1990 and that service connection for a hearing disability may be found through other medically sound evidence when there is no evidence of a hearing disability in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The appeal is now returned to the Board for appellate consideration. As the RO granted service connection for left ear hearing loss in November 2020, the appeal for left hearing loss is not before the Board. However, given that the November 2020 VA examiner did not consider all evidence of record there is not substantial compliance with the Board’s remand directives. The Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss was incurred in, aggravated by or otherwise attributable to active duty. Both VA examiners of record have offered etiologic opinions in this matter without consideration of all evidence in the Veteran’s service treatment records which results in findings that seem to contradict the evidence of record. The Veteran’s service treatment records reflect three audiograms. Both VA examiners refer to a reference audiogram which occurred in 1985, seven years after the Veteran was inducted into service. No mention is made of the 1978 induction audiogram. In addition, the second VA examiner offered an opinion based upon a pre-existing hearing loss without discussing the basis for finding a pre-existing hearing loss. Upon enlistment in 1978, the Veteran denied hearing loss on his Report of Medical History. The Veteran’s audiometric testing in December 1978, which has not been considered in either VA examiner’s opinions, revealed right ear pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 10 20 The Board observes that these induction thresholds do not represent a hearing loss for VA purposes, and it is unclear as to whether the Veteran’s induction thresholds represent a hearing loss of any degree. The examiner also offered an opinion that the Veteran’s hearing thresholds improved while in service although there is no comparison to the induction audiometric testing. Accordingly, the appeal for service connection for right ear hearing loss must be remanded for an opinion which considers all evidence of record. The matter is REMANDED for the following action: 1. Request an addendum opinion from the November 2020 audiologist or, other audiologist to address the following: a) Whether the Veteran clearly and unmistakably had a hearing loss prior to service induction (undebatable); and, if so, b) Whether the pre-existing hearing loss was clearly and unmistakably (undebatable) not aggravated beyond its normal progression in service, and, c) If the Veteran is found not to have a pre-existing hearing loss in service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any right ear hearing loss had its onset in or is etiologically related to service. The examiner is requested to review this Remand and to note his review in her/his opinion. The examiner’s attention is requested, as noted above, to the Veteran’s December 1978 audiometric testing. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not consider the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). (Continued on the next page)   2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded a period ot time in which to respond before the appeal is returned to the Board KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, Associate 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.