Citation Nr: 21026413 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-17 164 DATE: May 3, 2021 REMANDED Service connection for hearing loss. REASONS FOR REMAND The Veteran served on active duty from April 1966 to June 1970. The case is on appeal from a May 2014 rating decision. In October 2018, the Veteran testified at a Board hearing. In a March 2019 decision, the Board granted service connection for fibromyalgia and remanded the issues of service connection for hearing loss and tinnitus. While the case was in remand status, in an October 2020 rating decision, the RO granted service connection for tinnitus. As the benefit sought for this issue has been granted in full, the issue is no longer on appeal. Service connection for hearing loss. In its March 2019 remand, the Board specifically requested to obtain a VA opinion from an ENT professional to comment on the nature and etiology of the Veteran's bilateral hearing loss. Pursuant to the Board's remand, the Veteran was afforded a VA examination in October 2020; however, not by an ENT specialist but by an audiologist. The examiner indicated that with respect to the right ear, while the 1966 entrance examination indicated hearing within normal limits, the 1970 separation exam indicated a moderate loss at 500 Hz; however, given the normal results at the 500 Hz frequency revealed by the October 2020 exam, the examiner opined that the loss at such frequency was temporary. He further noted that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. He added that "there is no report of complaint/treatment for hearing decrease in service treatment records" (STRs) or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and "not another etiology." The examiner concluded that the evidence is against a nexus in this case and therefore, it is less likely than not that the hearing loss is related to military noise exposure. As for the left ear, the examiner opined that the 1966 entrance examination indicated hearing within normal limits at the 500-4000 Hz frequencies. Nonetheless, the 1970 separation exam indicated a mild loss at 500 Hz and a moderate loss at 6000 Hz. The October 2020 exam revealed normal hearing at 500 Hz, indicating that the loss at this frequency was temporary. However, "hearing tests from 2014, 2017, and today [October 2020] confirm a loss at 6000 Hz." The examiner concluded that while the onset of the loss at 6000 Hz cannot be determined as the entrance exam did not test at 6000Hz, given the Veteran's military noise exposure and the loss at 6000 Hz found at separation, it is at least as likely as not that his hearing loss is related to military noise exposure and related acoustic trauma. For the reasons set forth below, the Board finds that the above VA opinion is still not sufficient to decide the Veteran's claim at this time. With respect to the right ear, the Board notes that the examiner appears to have limit and based her opinion solely on the in-service history and the current results of the Veteran's hearing at the 500 Hz frequency, without consideration or discussion of the additional frequencies, to include an opinion as to the nature and etiology of the Veteran's right ear hearing loss as specifically requested by the March 2019 remand directives. In that regard, the examiner opined that "auditory damage and hearing loss are not conceded based on noise alone" and that "there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology." However, and based on the specific circumstances of this case, the examiner did not specify nor discuss what would be "another etiology" to which attribute the Veteran's right ear hearing loss in order to rule out the Veteran's exposure during military service. This is particularly so when the Veteran has established that during any post-service occupational and recreational noise exposures, he used hearing protection. Moreover, as noted in the March 2019 Board remand, the Veteran's noise exposure has been conceded based on his active combat service in Vietnam for which the absence of reports or treatment in his STRs is not dispositive of this case. As for the left ear hearing loss, while the examiner indeed, provided a positive nexus opinion, the opinion appears to be based on the threshold shift noted at the 6000 Hz. However, the applicable regulation does not consider hearing loss at the 6000 Hz frequency. To that effect, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As clearly noted, the regulation does not consider the 6000 Hz frequency for service connection purposes. The October 2020 audiology test revealed a left ear hearing impairment at the 3000 and 4000 Hz frequencies. Nevertheless, an opinion as to the etiology and nature of such hearing impairment, besides the threshold shift noted at the 6000 Hz, was not included in the report. In sum, while the examiner linked the Veteran's right ear hearing loss to his military service, she may have done so based on a frequency not considered for service connection purposes. For the reasons set forth above, the Board finds that a remand is warranted to obtain a VA opinion from an ENT specialist to comment on the actual nature and etiology of the Veteran's hearing loss in compliance with the Board's March 2019 remand directives. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to an ENT specialist to obtain an opinion as to the nature and etiology of the Veteran's bilateral hearing loss. The examiner should review the entire file, to include all audiograms previously performed. The physician is asked to provide an opinion as to whether it is at least as likely as not that any current hearing loss in the Veteran's right ear and/or left ear had its onset during active service, or is related to any in-service event, to include the established exposure to excessive loud noise during service. Consideration shou be given to the Veteran's statements indicating that his post-service occupational and recreational noise exposure was with hearing protection. A detailed rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.