Citation Nr: 21023046 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-24 529 DATE: April 20, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in an October 2019 hearing. This matter was previously before the Board and was remanded in December 2019 and in November 2020 for further development. Entitlement to service connection for right ear hearing loss is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2020, the Board remanded the Veteran’s claim and directed the RO to obtain a new etiology opinion as to right ear hearing loss. The examiner was required to “discuss the possibility of delayed-onset hearing loss, as noted in the article submitted by the Veteran titled ‘ Occupational Noise-Induced Hearing Loss.’” In March 2021, a new VA etiology opinion was obtained. However, the examiner stated this article was not available in the records he reviewed, even though it is in the record. Thus, there has not been substantial compliance with the Board’s remand instruction. An additional opinion as to the etiology of the Veteran’s right ear hearing loss must be obtained. The matters are REMANDED for the following action: Ensure the entire claims file, including the article “Occupational Noise-Induced Hearing Loss,” submitted by the Veteran in October 2019, is available for review by a qualified medical clinician. Request a new opinion from this clinician to address the etiology of the Veteran’s right ear hearing loss. The clinician must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current right ear hearing loss disability was incurred inservice or is otherwise related to military service. The clinician must specifically acknowledge and discuss the Veteran’s in-service noise exposure and patterns of post-service right ear hearing loss complaints. Simply observing that right ear hearing loss was not noted on in-service hearing tests will be deemed an inadequate rationale for a negative etiology opinion. If the clinician attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding that explains why the current hearing loss would be more likely due to factors other than the in-service noise exposure. The clinician must also discuss the possibility of delayed-onset hearing loss, as noted in the article submitted by the Veteran in October 2019 titled “Occupational Noise-Induced Hearing Loss.” The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If the clinician finds an additional examination is necessary, schedule an examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.