Citation Nr: 21012154 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-27 963 DATE: March 3, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active duty from February 1971 to April 1972, with service in the Republic of Vietnam (RVN). He was awarded a National Defense Service Medal, Vietnam Service Medal and Vietnam Campaign Medal with device. The Board remanded this matter in June 2020. However, the Board finds that the RO did not substantially comply with the directives set forth in the June 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the June 2020 remand, VA opinion was obtained for the Veteran’s hearing loss claim. The Board directed that the VA examiner consider and discuss the Veteran’s in-service noise exposure and lay statements of hearing complaints, as well as post-service noise exposure and lay statements of hearing complaints. The Board directed the examiner to also consider and discuss the medical journal article submitted by the Veteran’s representative in February 2009. The examiner was informed that the absence of evidence of treatment for a claimed disability in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. In a November 2020 VA opinion, the examiner opined that the Veteran’s hearing loss was less likely than not due to service. The examiner noted that the Veteran served as a radio operator in the Army from February 1971 to April 1972. During the exam, the Veteran demonstrated indicators of nonorganic hearing loss including ability to understand conversational speech during the in-person examination without the use of visual cues; SRT in poor agreement with the 3 frequency PTA; ARTs present at lower than expected levels based on pure tone audiometry; excellent word discrimination ability at 40 dB over SRT; flat audiometric configuration; and elevated bone conducted scores. Though noise was conceded, it was the opinion of the examiner that test results were not valid for rating purposes (not indicative of organic hearing loss) as hearing thresholds were elevated. Therefore, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that the examiner did not discuss the Veteran’s lay statements as well as the medical journal article submitted by the Veteran’s representative in February 2009. This is a Stegall violation. Additionally, the examiner found that test results were invalid. Thus, the Board finds the November 2020 VA opinion to be inadequate, and an additional VA opinion is needed to determine the etiology of the Veteran’s hearing loss. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain an addendum VA opinion from an examiner, or appropriate substitute, to determine the etiology of the Veteran’s bilateral hearing loss claim. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to service. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay statements regarding in service hearing loss and post-service continued hearing loss, as well as the medical journal article submitted by the Veteran’s attorney in February 2009. The examiner must note that the absence of evidence of treatment for a claimed disability in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. 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. 3. 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. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.