Citation Nr: 21020808 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-47 358 DATE: April 8, 2021 REMANDED Entitlement to an effective date earlier than May 1, 2015, for the grant of service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified during a hearing convened at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file and has been reviewed. In June 2019, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). A remand of this claim is warranted for issuance of an addendum medical opinion. The Veteran contends that an effective date in August 1972 should be assigned. In the rating decision on appeal, the RO granted service connection for bilateral hearing loss disability and tinnitus and assigned an effective date of May 1, 2015. In November 2019, a VA examination was completed. See November 2019 VA Examination. The examiner indicated that the hearing loss noted upon examination is consistent with noise induced hearing loss which is beyond the normal progression for the Veteran’s age. As such, the examiner found that the Veteran’s hearing loss is at least as likely as not related to acoustic trauma from military noise. The examiner did not provide an opinion as to whether the Veteran had a hearing loss disability in August 1972 under VA guidelines. In September 2020, a VA addendum opinion was completed. See September 2020 VA Examination. The examiner stated that there was no separation exam completed in 1980. The examiner also indicated that he or she attempted to review the requested 1972 and May 2015 reports, but the reports were not available in his or her records. The May 2015 report is more appropriately labeled the July 2015 report, which the examiner indicated was reviewed. As the 1972 record was unavailable, the examiner was unable to comment on the report. The examiner opined that there was no additional information regarding a 1972 report indicating an auditory threshold of at least 40 decibels between 2000 and 4000 Hz. 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 VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The August 2019 Board Decision ordered the examiner on remand to consider whether the Veteran had a hearing loss disability in August 1972 under VA guidelines. The decision specifically ordered the examiner to discuss the evidence provided in the October 1972 VA examination report. See October 1972 Report of Medical Examination for Disability Evaluation. It also requested that the examiner discuss the comment in the May 2015 report that the October 1972 report evidenced “high frequency hearing loss.” See July 2015 VA Examination. The November 2019 and September 2020 VA opinions fail to adequately consider or address the requested reports. Based on the examiners’ failure to adequately consider or address the October 1972 VA examination report and the July 2015 report in reaching his or her conclusion, there was not substantial compliance with the Board’s remand instructions, so the Board must remand this matter for an addendum VA medical opinion that addresses all the evidence of record. Therefore, a remand is necessary for an addendum opinion to discuss the effective date of the Veteran’s bilateral hearing loss. Importantly, current VA guidelines detailed under 38 C.F.R. § 3.385 were not in effect prior to 1994. Nevertheless, the guidelines in effect in 1972 are similar. Those guidelines designated high frequency hearing loss disability where an auditory threshold of at least 40 decibels is found at 2000 to 4000 Hertz. The matter is REMANDED for the following action: 1. Return the case to the VA examiner who conducted the November 2019 VA audiology examination, or to a suitable substitute. After reviewing the claims file, the examiner should provide an addendum medical opinion addressing the following question. Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran had a hearing loss disability in August 1972 under VA guidelines? In answering this question, discuss the evidence provided in the October 1972 VA examination report. Also discuss the comment in the July 2015 report that the October 1972 report evidenced “high frequency hearing loss.” Is there any information in the report indicating an auditory threshold of at least 40 decibels between 2000 and 4000 Hertz? Please explain in detail any opinion provided. 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. 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). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.