Citation Nr: 21015992 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-42 443 DATE: March 18, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from November 1965 to August 1967. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that the Veteran’s claim of entitlement to service connection for a back disorder was granted in a November 2020 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2019). The Veteran contends that his bilateral hearing loss is the result of in-service hazardous noise exposure. The Board notes that this matter was remanded in January 2020 to obtain a new VA examination regarding the etiology of the Veteran’s hearing loss. The Board noted that the Veteran had been diagnosed with bilateral sensorineural hearing loss within the meaning of 38 C.F.R. § 3.385 based on the results of a February 2016 private audiology examination. In addition, the Veteran’s military occupational specialty of auto repairman was consistent with in-service acoustic trauma. Furthermore, the Veteran and his wife testified at the Board hearing that (1) he had daily in-service exposure to loud engine noise without hearing protection, (2) that he has had recurrent hearing loss symptoms since service, (3) that he appeared to have no hearing problems prior to service and (4) that his hearing difficulty became evident for the first time upon his return from service. Finally, the Board noted that the Veteran previously underwent a VA audiological examination in July 2016. The examiner determined that the test results for the left ear and right ear were not valid, because the Veteran’s responses were inconsistent. No diagnosis was made. Although the examiner checked the “yes” box on the form to indicate that a nexus opinion was being provided as to hearing in both ears, no nexus opinion was given. The Veteran underwent a second VA auditory examination in August 2020. The examiner determined that the test results for the left ear and right ear were not valid, because the Veteran’s responses were inconsistent and unreliable. In addition, no etiology opinion was rendered regarding the Veteran’s hearing loss and whether it is related to the in-service acoustic trauma. Furthermore, there is evidence in the claims file indicating that there was a dispute between the Veteran and the examiner during the examination. The Veteran was reported to be frustrated with “interview” questions and declined to answer any case history questions during the examination. He also reported having difficulty with the examiner’s instructions and “wanted the hearing test over” based on the examiner’s apparent rudeness to the Veteran. The Board has no way to determine who was at fault (if anyone) for the results of the most recent VA examination. The Board notes there is a history of the Veteran providing inconsistent responses to VA examiners. In interest of fairness to the Veteran, the Board will assume, this last time, that there was a problem with instructions provided at the VA examination. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with its previous remand directives. As such, it must remand this matter to obtain a new VA examination and etiology opinion. The Veteran is reminded that VA's duty to assist in the development of his claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Failure to cooperate during a VA examination “subject[s claimants] to the risk of an adverse adjudication based on an incomplete and underdeveloped record.” Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). The Board urges the Veteran to cooperate with the required testing to help reach a speedy and accurate disposition in this claim. The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for an examination (or a telehealth interview if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any hearing loss disability. The examiner must opine as to whether any such disability is at least as likely as not: (a.) Related to an in-service injury, event, or disease, including the Veteran’s competent account of in-service noise exposure and symptoms; and/or (b.) Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service. Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that, in rendering the requested opinion, he or she should be aware that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. (Continued on the next page)   If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner 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 that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.