Citation Nr: 21025407 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-37 654 DATE: April 29, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for allergic rhinitis is remanded. REASONS AND BASES FOR REMAND The Veteran served honorably in the U.S. Navy from August 1998 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in February 2013 and May 2013 issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in September 2019; a transcript of that hearing is of record. During the pendency of the appeal, a February 2021 rating decision granted service connection for a left eye disability, and a January 2021 granted service connection for a headache disability and tinnitus. Accordingly, because the Veteran was awarded service connection for these disability, they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran’s service connection claim for allergic rhinitis was most recently remanded by the Board in December 2019 for further development, to include the procurement of a VA addendum opinion pertaining to the Veteran’s allergic rhinitis claim. However, for the reasons set forth below, substantial compliance with the Board’s December 2019 Remand directives has not occurred; thus, unfortunately, the Veteran’s allergic rhinitis claim must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, the Veteran’s service connection claim for bilateral hearing loss must be remanded for further development. 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 claims so that he is afforded every possible consideration. The Veteran contends that his bilateral hearing loss is causally related to his exposure to hazardous military noise during service to include hazardous noise emanating from firearms, bombs, and aircraft engines. The Board notes that VA has conceded that the Veteran suffered from exposure to hazardous noise during his military service, as his military occupational specialty (MOS) of aviation ordnanceman is associated with a high probability of noise exposure. The Veteran further contends that he has difficulty hearing and understanding speech, especially from his right ear, due to his right hand being his “shooting hand.” The Veteran was afforded a VA audiological examination in November 2012, which culminated in a report reflecting that audiometric testing could not be performed, due to “inconsistent and unreliable responses.” In addition, the November 2012 VA examination report further indicates as follows: (1) review of the Veteran’s service treatment records (STRs) reveals hearing within normal limits upon enlistment and separation from active service; (2) the November 2012 test results are not valid for rating purposes (not indicative of organic hearing loss) as (a) right/left ear otoscopy reveals a clear external auditory canal; (b) acoustic immittance testing is consistent with normal middle ear function; (c) volunteered pure tone responses were inconsistent and unreliable; (d) the Veteran “had poor SRT/PTA agreement;” and (e) word recognition ability is excellent below normal conversation level and at levels below volunteered pure tone threshold. In light of the foregoing, the November 2012 VA examination reports concludes that the Veteran’s hearing loss is less likely than not to have been caused by military noise. The Veteran was afforded another VA audiological examination in December 2020, which culminated in a report reflecting hearing thresholds as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 80 70 75 85 77.50 LEFT EAR 55 35 50 60 50.00 Speech recognition was recorded as 50 percent in the right ear and 94 percent in the left ear. However, the December 2020 examination report also concludes that the Veteran’s audiological test results are not valid for rating purposes and did not offer an etiology opinion. The December 2020 VA examination report further notes as follows: [The] Veteran was able to communicate with this clinician at a normal conversational level, without hearing aids, and when not looking at the speaker. The Veteran’s volunteered pure tone responses were inconsistent and unreliable. There was a positive Stenger at 1kHz and 2kHz. There was poor SRT/PTA agreement. While this clinician does believe that the Veteran has some degree of hearing loss, it was clear that his volunteered thresholds at today’s appointment were exaggerated. Due to objective findings being inconsistent with organic hearing loss, today’s test results are not valid for rating purposes. As the pure tone and SDS scores are not valid, no opinion is provided. (emphasis added.) As the examiner felt there was at least some degree of hearing loss, the Board is of the opinion that the Veteran should be provided an additional opportunity to report for a VA audiological examination with the objective of obtaining valid test results and an opinion as to the etiology of his hearing loss. The Veteran is reminded, however, that the Court has held that VA’s duty to assist the Veteran in the proper development of his case is “not always a one-way street” and the Veteran must be prepared to cooperate with VA’s efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992). 2. Entitlement to service connection for allergic rhinitis is remanded. Although the Board sincerely regrets the additional delay, an additional remand 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. As stated above, the Board remanded the Veteran’s allergic rhinitis claim in December 2019 in order to obtain a VA addendum opinion addressing the Veteran’s allergic rhinitis and expressly directed as follows: Contact the VA examiner who conducted the April 2013 VA sinusitis, rhinitis, and other conditions examination (or if he or she is no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. The examiner should provide a medical opinion on whether it is as likely as not (50 percent or greater probability) that the diagnosis of allergic rhinitis is related to service. In rendering his/her opinion, the examiner should specifically consider and discuss STRs showing in-service diagnoses of allergic conjunctivitis in July 2000 and allergies/viral syndrome in February 2001. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. (emphasis in original.) In January 2021, the directed VA addendum opinion was provided, which again declined to find a causal link between the Veteran’s active military service and his allergic rhinitis based upon the following rationale: My review of service treatment records revealed 3 separate, isolated, self-limiting upper respiratory problems (noted in original DBQ), but failed to show evidence of chronic rhinitis/rhinosinusitis. Although the veteran has claimed that his “sinus condition” was incurred in or caused by complaints of sinus trouble / allergies that occurred on active duty, my review of service medical records failed to meet to the standard of chronicity, specifically chronic allergic rhinitis while on active duty. The specific tabbed evidence, noted on this request was reviewed again, as it was on prior exams. Regarding allergic conjunctivitis, the veteran had one episode of acute allergic conjunctivitis [sic] without further evidence of chronicity, which is NOT a diagnostic indication for allergic rhinitis. Thus, based on the evidence provided, this examiner can NOT establish diagnosis of Allergic rhinitis without resorting to mere speculation. Per UpToDate: “Acute allergic conjunctivitis — Acute allergic conjunctivitis is a sudden-onset hypersensitivity reaction that is caused by environmental exposure, usually to a known allergen, such as cat dander [16]. Symptoms can develop rapidly (I.e., as quickly as 30 minutes). Once exposure to the allergen has ended, symptoms generally resolve within 24 hours.” However, despite the Board’s December 2019 directive that the examiner expressly “specifically consider and discuss STRs showing in-service diagnoses of allergic conjunctivitis in July 2000 and allergies/viral syndrome in February 2001” (emphasis in original), the January 2021 VA opinion failed to address the totality of the Veteran’s STRs, including the Veteran’s in-service diagnosis and treatment for “allergies/viral syndrome in February 2001,” as well as any of the following: (1) a September 1998 treatment note indicating the Veteran’s report of nasal congestion; (2) a September 1998 treatment note indicating a diagnosis of an upper respiratory infection; (3) a September 1998 treatment note indicating a diagnosis of viral syndrome, manifested by fever, chills, cough, and body aches; (4) a September 1998 treatment note indicating the Veteran’s report of coughing; stuffy head and chest; sore throat; nausea; and greenish mucus; (5) a July 1999 treatment note indicating a diagnosis of viral syndrome/bronchitis; (6) a July 1999 treatment note indicating the Veteran’s report of coughing; stuffy head and chest; sore throat; nausea; and greenish mucus; (7) a July 1999 treatment note indicating a diagnosis of viral syndrome/bronchitis; (8) a July 2000 treatment note indicating a diagnosis of bilateral erythema in addition to allergic conjunctivitis, manifested by the following: bilateral eye irritation; itching; pain; crusting; watering; photophobia; nasal congestion; and slight edema to eyelids; (9) a July 2000 treatment note indicating treatment with liquid tears and Claritin; (10) a July 2000 treatment note indicating a report by Veteran that the prescribed medication provided no relief; (11) a July 2000 treatment note indicating a continued diagnosed of allergic conjunctivitis and bilateral erythema; and (12) a February 2001 treatment note indicating a diagnosis of an upper respiratory infection and treatment with sudafed. Nor did the January 2021 VA opinion address the Veteran’s competent September 2019 hearing testimony before the undersigned regarding the onset of his claimed allergic rhinitis during service including the following: (1) in 1999 during service, the Veteran was diagnosed with bronchitis on his “first cruise,” which marked the onset of his sinus problems; (2) the Veteran was diagnosed with “bronchitis” every year during service and treated with amoxicillin or Bactrim; and (3) the Veteran’s post-service VA emergency provider advised him that his current sinus condition is connected to his in-service diagnosis and treatment for bronchitis. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran’s STRs confirm the following: (1) the Veteran was treated during service for his upper respiratory symptoms, which were diagnosed as an upper respiratory infection, bronchitis, allergic conjunctivitis, and viral syndrome, on eight different occasions during his four years of service, rather than the three instances cited by the January 2021 VA addendum opinion; (2) the Veteran was treated for his upper respiratory symptoms at some point during every year of his service: 1998, 1999, 2000, and 2001; and (3) in July 2000, the Veteran expressly reported that his upper respiratory symptoms had not resolved within 24 hours, but had instead continued for more than seven days without responding to the prescribed treatment. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board’s remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. Accordingly, in light of the failure to obtain the directed medical opinion addressing the totality of the relevant evidence of record, substantial compliance with the Board’s December 2019 remand directives has not occurred. See id; see Stegall, 11 Vet. App. at 271. Therefore, the Veteran’s allergic rhinitis claim must once again be remanded for further development. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the December 2020 examiner, to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hearing loss is due to or otherwise causally or etiologically related to his military service. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, obtain a VA addendum opinion from an appropriate clinician, different from the January 2021 VA examiner, to determine the nature and etiology of the Veteran’s claimed allergic rhinitis. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s allergic rhinitis is due to or otherwise causally or etiologically related to his military service. The examiner is requested to expressly address all relevant and competent lay and medical evidence of record, and specifically discuss the February 3, 2001, treatment note indicating a diagnosis of allergies/viral syndrome. The examiner must also discuss the use of allergy medicine, such as Claritin and sudafed, during service and the Veteran’s report of extent, frequency and continuity of symptoms. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.