Citation Nr: 21012411 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-41 223 DATE: March 4, 2021 REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to an initial compensable disability rating for right ear sensorineural hearing loss disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and January 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this matter in October 2016 and January 2019. The Board finds there has been substantial compliance with its January 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Nonetheless, having reviewed the record, the Board finds remand is warranted for an examination. The March 2017 VA hearing examination report noted that the Veteran was reinstructed several times due to inconsistent results. The examiner concluded that based on the audiological evaluation and unreliable responses from the Veteran, hearing loss could not be estimated and opinion regarding the left ear hearing loss could not be provided without resorting to mere speculation. See March 2017 Examination Report; April 2018 VA Opinion. Due to the lack of clarity of the nexus opinion and inadequate audiology examination results, the Board finds remand is warranted once more for an examination. On remand, the Veteran should be afforded an audiological examination to determine the severity of his right ear hearing loss and the etiology of his left ear hearing loss. The examiner should specifically address the Veteran’s 1968, 1972, and 1974 audiograms. Additionally, and pursuant to the October 2016 Board decision, the examiner is instructed that although the Veteran had decreased hearing acuity in the left ear at entry and was assigned a hearing profile, he did not meet VA’s definition of a hearing loss. As such, it cannot be considered a preexisting disability. Finally, the Veteran is advised that although VA has a duty to assist him in substantiating his claims, that duty is not a one-way street and it is important that he make a good faith effort to assist VA by complying, to the best of his ability, with audiological testing. See Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). As the increased rating and service connection claims are being remanded, the outcome of which could affect whether the Veteran meets the criteria for TDIU benefits, the Board finds that the claim for TDIU is inextricably intertwined with the above claims and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Any outstanding VA treatment records from July 2020 to present should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to present. 2. Schedule the Veteran for an audiological examination by an appropriate clinician to determine the etiology of the claimed left ear hearing loss and the current severity of service-connected right ear hearing loss. First, the examiner should provide a full description of the hearing loss disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Second, the examiner should provide an opinion on the etiology of left hearing loss disability. The examiner is asked to provide a response to the following: (a) Is the left ear hearing loss disability at least as likely as not related to service, including as due to the Veteran’s military occupational specialty as a wheeled vehicle mechanic? (b) Is the left ear hearing loss disability at least as likely as not proximately due to service-connected right ear hearing loss? (c) Is the left ear hearing loss disability at least as likely as not aggravated (worsened beyond its natural progression) by right ear hearing loss? (d) If the Veteran has a diagnosis of sensorineural hearing loss of the left ear, did it at least as likely (1) begin during active service, (2) manifest within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner should specifically address the Veteran’s 1968, 1972, and 1974 audiograms. Finally, and pursuant to the October 2016 Board decision, the examiner is instructed that although the Veteran had decreased hearing acuity in the left ear at entry and was assigned a hearing profile, he did not meet VA’s definition of a hearing loss. As such, it cannot be considered a preexisting disability. Any opinions offered should be accompanied by the underlying reasons for the conclusions. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran 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 Vang, Stephanie 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.