Citation Nr: 21022725 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-09 151 DATE: April 19, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted service connection for tinnitus and denied service connection for a bilateral hearing loss disability. The matter was previously before the Board in December 2018, where it was remanded for further evidentiary development including obtaining an addendum medical opinion. The matter has returned to the Board for an appellate review. Entitlement to service connection for a bilateral hearing loss disability is remanded. Pursuant to the Board’s December 2018 remand directives, the Veteran was afforded another VA examination in October 2019. The Board finds that this examination inadequate for adjudicative purposes. At the October 2019 VA examination, the Veteran was diagnosed of a bilateral sensorineural hearing loss. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there was “no evidence of hearing loss claimed or evidence of testing that reflected that.” The examiner also stated that she cannot provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation as there was no evidence in his file to claim hearing loss. See October 2019 C&P Examination. The Board notes, however, that hearing loss need not be shown in service for service connection to be established if there is sufficient evidence that a current hearing disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, the opinion against the claim is inadequate, as it is solely based on the absence of hearing loss shown in service. Moreover, the October 2019 opinion did not specifically discuss (as mandated by the December 2018 Board Remand) the November 2018 Appellate Brief, where the Veteran’s representative cited medical literature and contended that, noise-induced hearing loss could be immediate or could take a long time to be noticeable. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Therefore, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician addressing the etiology of the Veteran's bilateral hearing loss. The entire claims file must be made available to and reviewed by the examiner, who must specify in the report that these records were reviewed. The examiner is asked to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss was incurred in or is related to active duty service, to include in-service noise exposure. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss is etiologically related to his service-connected tinnitus. If the examiner concludes that it is not, the examiner must discuss the probable etiology of the Veteran's bilateral hearing loss. The examiner should specifically discuss the Veteran's lay testimony that he has not been exposed to loud noises since leaving service, and that he has experienced hearing loss since service that has worsened over time. The examiner must consider and discuss: the article referenced in the November 2018 Appellate Brief regarding the National Institute of Health, the National Institute on Deafness and Other Communication Disorders’ (NIDCD) position on the possibility of delayed onset of noise-induced hearing loss; the Journal of Neuroscience article referenced in the March 2021 Appellate Brief, which shows that auditory damage can accelerate hearing loss in aging in some cases. The examiner must provide a complete rationale for all opinions provided, citing all evidence and medical literature relied upon. If the examiner cannot reach a conclusion on any issue without resorting to mere speculation, the examiner must explain why. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.