Citation Nr: 21022728 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-09 078 DATE: April 19, 2021 REMANDED The service connection claim for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1970 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In March 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In May 2015 and January 2020, the Board remanded the case to the RO for further evidentiary development. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the January 2020 Remand, the Board noted that a July 2015 addendum opinion merely repeated the rationale from a prior opinion without further comment. Therefore, on remand, the Board particularly instructed, among other directives, that in rendering an opinion as to whether the Veteran’s current bilateral hearing loss is related to his active duty service, the VA examiner must consider the Veteran’s lay statements about noise exposure, both during active service as a weapons mechanic and post-service, including previously reported occupational and recreational noise exposure. Citing, Ledford v. Derwinski. The Board particularly cautioned and instructed that “mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim.” Although the AOJ obtained another VA opinion in January 2020 VA opinion rendered a negative opinion, with a similar rationale as previous opinions of record. Pertinently, the examiner did not address or consider the Veteran’s lay statements about noise exposure; his military occupational specialty (MOS) as a weapons mechanic; his post-service discharge; and his previously reported occupational and recreational noise exposure. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for a clarification of the Veteran’s bilateral hearing loss, from an audiologist (VA examiner) who has not yet evaluated the Veteran’s bilateral hearing loss. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service, to include his reported in-service noise exposure. b. In rendering an opinion, the VA examiner’s rational must not be solely based on the absence of evidence of in-service hearing loss, complaints and/or treatment for hearing loss, and/or the fact that the Veteran’s hearing was normal during and/or at his separation from service. c. In rendering an opinion, it must consider all pertinent evidence, including and not limited to: i. The Veteran’s lay statements about his in-service noise exposure. ii. The Veteran’s MOS as a weapons mechanic. iii. Reported post-service occupational and recreational noise exposure. The examiner is not being asked to make any findings concerning the credibility of any lay statement or of any piece of evidence as that task falls under the perview of the Board’s decision-making authority on appeal. (Continued on the next page)   The examiner is certainly free to comment upon whether any lay statement or evidence is medically consistent and/or medically inconsistent. 2. After obtaining the addendum opinion, the AOJ must ensure that the VA Opinion complies with the Board remand directives. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.