Citation Nr: 21023958 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-36 997 DATE: April 21, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1977 to January 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019. In the March 2019 decision, the Board remanded two issues; specifically, service connection for right ear hearing loss and service connection for tinnitus. During the pendency of this appeal, the RO granted service connection for tinnitus in a June 2020 rating decision. This represents a full grant of the benefits sought so that issue is no longer on appeal. Accordingly, entitlement to service connection for right ear hearing loss is the only claim remaining before the Board for adjudication. In the March 2019 decision, the Board directed the RO to obtain an addendum opinion on whether it is at least as likely as not that the Veteran’s right ear hearing loss was attributable to service. The examiner was requested to address an in-service complaint of right ear ache as well as certain in-service audiological evaluations. The examiner was also requested to explain why the Veteran’s current right ear hearing loss is not a delayed response to his in-service noise exposure. In November 2019, the Veteran was afforded an audiological examination. The examiner diagnosed the Veteran as having sensorineural hearing loss in frequency range of 500 to 4000 Hertz and at higher frequencies of 6000 Hertz and above. The audiometric findings of the right ear met the criteria for hearing loss for VA purposes under 38 C.F.R. § 3.385. The examiner provided a negative nexus opinion without a sufficient rationale. The examiner stated that the “veteran’s hearing in the right ear was normal when he left the service. The hearing loss occurred later in life.” The examiner used the wrong standard when opining whether the Veteran’s current right ear hearing loss is attributable service. Even if the Veteran’s hearing was found within normal limits at separation, it does not preclude the Veteran from establishing service connection post-service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the examiner stated that the Veteran’s right ear hearing loss was preexisting based on the fact that his “hearing in the left ear was essentially unchanged from his enlistment physical. His hearing hadn’t changed.” Clearly, the examiner erred in relying on the Veteran’s preexisting left ear hearing loss to justify that the Veteran’s right ear hearing loss was preexisting. There is no evidence that the Veteran’s right ear hearing loss preexisted service. Thus, the examiner used inaccurate facts so his opinion and is afforded no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Further, the examiner did not address the specific in-service right ear ache complaint or the in-service audiological evaluations described in the March 2019 Board decision. Accordingly, the examiner’s opinion is inadequate. Once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the RO did not substantially comply with the December 2019 Board remand directives and another remand is required to obtain an adequate nexus opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 1978 service treatment records show that the Veteran complained about a right ear ache resulting in decreased hearing, which he had experienced for two weeks. Additionally, the service treatment records show the Veteran underwent audiological examinations in January 1977, January 1978, and October 1978. The United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley at 157. The January 1978 audiological test shows the Veteran’s right ear had a threshold of 40 decibels at 3000 Hertz, which meets the criteria of hearing loss under 38 C.F.R. § 3.385. This in-service threshold of 40 decibels at 3000 Hertz must be addressed by the examiner. In addition, the examiner, in formulating his or her opinion, is requested to address the three aforementioned audiological evaluations and the Veteran’s October 1978 complaint of a right ear ache. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person VA audiological examination by an appropriate examiner, other than the November 2019 examiner, with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s right ear hearing loss. 2. Provide the examiner the Veteran’s complete claims file, including the March 2019 Remand and this Remand, for review. The examination report should reflect that such review was accomplished. 3. The examiner should interview and examine the Veteran. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 4. Following the examination, and a review of the claims file and lay statements, the examiner should a. Opine whether it is as least as likely or not (50 percent probability or greater) that the Veteran’s current right ear hearing loss is caused by or otherwise etiologically related to his active duty service. b. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss (1) began during active service, (2) manifested within the presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner is cautioned against focusing his or her opinions solely on the evidence of record showing the Veteran experienced normal hearing during his exit discharge audiometer testing. 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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 5. In formulating the above opinions, the examiner needs to address the in-service complaint of a right ear ache in October 1978 as well as the January 1977, January 1978, and October 1978 audiological evaluations including the in-service threshold of 40 decibels at 3000 Hertz during the October 1978 audiological evaluation. 6. A complete rationale must be provided for any and all opinions offered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 7. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claim. 8. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case (SSOC) should be furnished to the Veteran and his representative, and he and his representative should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.