Citation Nr: 21015519 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-00 876 DATE: March 17, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1976 until his honorable discharge in September 1976. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2014, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record on appeal. In an August 2018 decision, the Board denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision to the Court of Appeals for Veterans Claims, which entered an order vacating the Board’s decision consistent with a Joint Motion for Partial Remand filed by the parties. The parties agreed the Board had relied on inadequate VA opinions as the bases for its decision. Consistent with the Court’s remand order, the Board remanded the claims to the RO in December 2019 for a new VA examination and opinion on the Veteran’s claims, which the RO accomplished in January 2020. In December 2020, the Board again remanded the Veteran’s claims to the RO, this time to obtain an addendum opinion because the Board found the January 2020 VA examiner’s rationales were conclusory. Thus, they were not of any probative value. The RO obtained a VA-contracted examination and medical opinion in January 2021. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Inadequate VA Medical Opinion When VA obtains a medical opinion from an appropriate VA health care professional on medical questions involved in the consideration of an appeal, the opinion must be adequate. 38 U.S.C. § 5103A(d); 38 C.F.R. § 20.906(a). The report must contain clear conclusions and supporting data, as well as “a reasoned medical explanation” connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). It appears to the Board that the January 2021 VA-contracted examiner copied verbatim the January 2020 VA examiner’s rationales, which the Board has already deemed inadequate. In addition, the January 2021 VA-contracted examiner did not acknowledge consideration of evidence that the Board requested. The Board finds it necessary to obtain an addendum opinion from a different qualified clinician. Although the Board finds the January 2021 VA-contracted examiner’s opinions and rationales lack merit, there is no indication the audiological examination was flawed in any other respect. Thus, the Board does not find a new audiological examination is necessary unless the new examiner finds that one is required. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from a qualified clinician other than the January 2021 VA-contracted examiner, L. H. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss and tinnitus, individually, had their respective onset in or are otherwise etiologically related to an in-service event, injury, or disease, to include noise exposure to firearms during active service. (b.) If the examiner determines the Veteran had a pre-existing hearing loss or tinnitus at the time of his entry into active service, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hearing loss or tinnitus were aggravated beyond their respective normal progression due to the Veteran’s active military service, to include noise exposure to firearms during active service. In rending an opinion, the examiner should indicate consideration of the following within the opinion: (c.) Pre-service, in-service, and post-service noise exposure. See, e.g., March 30, 2012 VA Audiology Consult (Veteran’s report of history); January 2020 and January 2021 VA examinations (Veteran’s report of history). (d.) The Veteran’s car accidents in August 1977 and January 1979, the extent relevant. (e.) Any prescription medications taken by the Veteran in June 2001, to the extent relevant. (f.) The Veteran’s history of frequent ear infections as noted in his VA treatment records in 2001, 2007, and 2008, to the extent relevant. (g.) Any alcohol and/or substance abuse, to the extent relevant. (h.) Excessive ear wax as noted in his Biloxi VAMC records, to the extent relevant. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of a hearing loss or tinnitus in service or the assertion that an in-service event, injury, or illness led to hearing loss or tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises and discuss their application to the facts of the case. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional shall 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 the particular question(s). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.