Citation Nr: 21022886 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-29 702 DATE: April 19, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1982 to October 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in December 2018, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for right ear hearing loss is remanded. Remand is required for substantial compliance with the December 2018 Board remand directives and for an addendum VA medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The December 2018 Board remand directives instructed the RO to obtain an addendum VA medical opinion that addressed whether it is clear and unmistakable that the pre-existing right ear hearing loss was not aggravated beyond its natural progression during active duty service. The examiner was also instructed to discuss the Veteran’s contention that their increased hearing loss is due to frequent exposure to gunfire and a horseplay incident, as well as an August 1982 enlistment audiogram, an April 1987 private audiological examination, and a June 2015 positive medical opinion. The Veteran underwent a new VA examination in October 2019 where the examiner provided a negative nexus opinion. The examiner explained that the enlistment hearing exam revealed a severe to profound hearing loss in the right ear, and that the separation hearing exam showed the same hearing loss with no significant threshold shifts, including notes indicating right ear hearing loss since birth and chronic childhood ear infections. The examiner also stated that two hearing exams in 1985 following a horseplay incident showed no significant threshold shifts as well. As a result, the examiner opined that this is a pre-existing hearing loss not aggravated by service nor any events during military service. The Board notes that the December 2018 Board remand directives instructed the examiner to opine whether it is clear and unmistakable that the pre-existing right ear hearing loss was not aggravated beyond its natural progression; however, the Board erroneously requested the wrong legal standard. The clear and unmistakable aggravation question is only applicable where the presumption of soundness applies. Where the presumption of soundness never attaches, as is the case here as the right ear hearing loss was noted upon entrance to active duty service, the question is whether there was aggravation. The examiner gave an opinion addressing the correct standard. Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111. When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. However, as noted above, the December 2018 Board remand instructed the examiner to address the Veteran’s contention that their hearing loss was aggravated by frequent exposure to gunfire, the 1987 private audiological examination conducted within one year of separation from active duty, and the June 2015 positive medical opinion from the Veteran’s VA primary care physician. The examiner failed to address any of these. Accordingly, remand is required for an addendum VA medical opinion. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the right ear hearing loss from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right ear hearing loss was aggravated during active duty service. (b) If so, the examiner must provide an opinion regarding whether the aggravation was clearly and unmistakably (undebatable) due to natural progress of the disease. (c) The examiner must address the following: 1) the August 1982 entrance examination; 2) the 1985 audiograms found in the STRs; 3) the September 1986 separation examination; 4) the Veteran’s assertion from a November 2012 statement that their hearing loss was worsened due to frequent exposure to gunfire; 5) the Veteran’s assertion from the same November 2012 statement, and the October 2013 Notice of Disagreement, that their hearing loss was worsened due to a horseplay incident; and 6) the June 2015 positive medical opinion. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.