Citation Nr: 21014895 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-15 753 DATE: March 16, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Navy from February 1977 to July 1982. The matter come before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision. As noted by the Board in the December 2016 remand, any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). In this case, service treatment records concerning the Veteran’s ears were added to the record after a June 1993 rating decision, which denied entitlement to service connection for bilateral hearing loss. These were in existence at the time of the June 1993 rating decision, and therefore, these additional service records received require reconsideration of the Veteran’s claim for service connection for left ear hearing loss. Analysis of the claim in light of 38 C.F.R. § 3.156(a) is unnecessary. In July 2016, a Board video-conference hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was offered another hearing before a different VLJ and declined to respond. A copy of the hearing transcript is associated with the claims file. In December 2019, the Board remanded the issues of service connection for left ear hearing loss and left ear otitis externa. Subsequently, in a September 2020 rating decision service connection for left ear otitis externa was granted and the issue is no longer in appellate status. Entitlement to service connection for left ear hearing loss. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of previous remands. However, for the following reasons, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. First, the Board acknowledges that with the exception of the December 2015 VA examination, VA audiological examinations including in July 2019 and February 2020 show that the Veteran did not meet the criteria for left ear hearing loss. However, as the Veteran on the December 2015 VA examination had 45 decibels at 2000 Hertz with a diagnosis of conductive left ear hearing loss, the evidence shows that he has had left ear hearing loss during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). To this extent, the requirement of a current disability has been met in the instant case. In the December 2019 remand, the Board instructed that the examiner in rendering an opinion “must address previous VA examinations, including the December 2015 examination that showed left ear conductive hearing loss.” The Board specifically instructed that the examiner “must also discuss current research regarding delayed onset hearing loss following noise exposure.” The Veteran was afforded a VA audiological examination in February 2020. While the examiner addressed the etiology of the Veteran’s conductive left ear hearing loss shown on the December 2015 VA examination, the examiner did not address as instructed by the Board in December 2019 the current research regarding delayed onset hearing loss following noise exposure. Therefore, there is a lack of compliance with the Board’s remand directives. Compliance with the Board’s remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the Board instructed that the Veteran be contacted as to whether he had any treatment from Portsmouth and Jacksonville Naval Medical Centers during her time in service and whether she received treatment from the Portsmouth, Virginia VAMC from 1982 to 1984 and the Jacksonville, North Carolina VAMC from 1984 to 1986. A December 2019 duty to assist letter requesting this information was sent to a previous address on [REDACTED] and came back as returned mail. Subsequently, the Veteran’s address was updated to reflect that she currently resides on [REDACTED]. A copy of the December 2019 duty to assist letter needs to be resent to the Veteran’s current address of record. Lastly, VA treatment records in September 2019 indicate that the Veteran was going to attend a hearing for disability benefits with the Social Security Administration (SSA). An attempt should be made to obtain SSA records that are pertinent to the Veteran’s claim of entitlement to service connection for left ear hearing loss. The matter is REMANDED for the following action: 1. Resend the December 2019 duty to assist letter to the Veteran at her current address on [REDACTED] asking her whether she had treatment from Portsmouth and Jacksonville Naval Medical Centers during her time in service, whether she received treatment from the Portsmouth, Virginia VAMC from 1982 to 1984 and the Jacksonville, North Carolina VAMC from 1984 to 1986, and whether there were any other relevant private or VA treatment records that needed to be obtained. Attach a copy of the December 2019 remand. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Obtain all the Veteran’s pertinent SSA records pertaining to the Veteran’s left ear hearing loss. Document all requests for information as well as all responses in the claims file. 3. Afterwards obtain an addendum opinion from the VA examiner who conducted the February 2020 VA examination. If the examiner is unavailable another competent examiner should render the opinion. After reviewing the claims file the examiner is asked to do the following: Opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s left ear hearing loss shown on the December 2015 VA audiological examination is related to the Veteran’s military service. In rendering the opinion the examiner must discuss current research regarding delayed onset hearing loss following noise exposure. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 4. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.