Citation Nr: 21027652 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-16 926 DATE: May 6, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to August 1970, from October 2001 to April 2002, and from February 2003 to November 2003 with additional service the reserves. He contends that his bilateral hearing loss and tinnitus incepted during his active service or are attributable to his service from continuous exposure to jet engine noise while working on the flight line as an electrician. See, e.g., March 2016 Veteran Statement; DD Form 214. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a correlation ("nexus") between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Active military, naval, or air service" includes active duty (AD) and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In the prior October 2018 remand, the Board asked that attempts be made to obtain the Veteran's complete military personnel records, specifically to verify periods of ACDUTRA and INACDUTRA to the extent possible. The Board observed that, throughout the Veteran's 34 years of service, his ANG/USAFR point credit summary showed approximately 20 AD points and 40-50 inactive duty for training (IDT) points in the late 1980s and in 1990-1991 as well as a period of civilian status from 1991 to 1993. He also had 51 AD points and 49 IDT points from September 1993 to September 1994 and nearly 400 AD and IDT points in a two-year period from September 1994 to September 1996. Therefore, the Board directed the RO to confirm all periods of recognized service, to include AD, AGR, ACDUTRA, and INACDUTRA and place a report documenting such in the claims file. On remand, additional personnel records were obtained that provided greater insight into the Veteran's periods of ACDUTRA and INACDUTRA; but these additional records do not specify the dates of ACDUTRA and INACDUTRA for the entirety of his service. In July 2020, the RO obtained information regarding his service from the VA/Department of Defense Identity Repository (VADIR), which confirmed that he served in the Air Force Reserves during October 2001 to November 2003. However, the report does not account for earlier periods of Reserve service and dates of ACDUTRA and INACDUTRA were not reported. Thus, the development actions requested in the Board's prior October 2018 remand were not fully completed. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This obligation is mandatory, not discretionary, and imposes a concomitant duty to ensure compliance with the terms of the remand. So, the development specified in the Board's prior remand must be completed at least to an acceptable substantial extent prior to adjudicating these claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Further, the Veteran was afforded a VA examination in November 2013 to determine the nature and etiology of his claimed conditions. The VA examiner opined that, although there were measurable changes in hearing during active duty service from 1967 to 1970, those changes were consistent across all frequencies with no disproportionate shift in frequency regions most typically affected by noise. Similarly, as there was no evidence of noise-induced hearing loss during military service, no basis for a nexus between the Veteran's tinnitus and military service existed. The examiner noted that service treatment records (STRs) after 1981 were not included in the claims file and, therefore, were not reviewed. In January 2014, an addendum VA medical opinion was obtained after additional STRs were associated with the claims file for the Veteran's later periods of active duty from October 2001 to April 2002 and from February 2003 to November 2003. However, the Board finds even this additional opinion inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). The examiner noted that, while it can be clearly established through objective audiometric test results in the Veteran's STRs that he experienced an onset of noise-induced hearing loss during his military career, the documented changes in hearing occurred during periods of inactive service. There is no evidence of aggravation of the hearing loss during the Veteran's active duty mobilizations from October 2001 to April 2002 and from February 2003 to November 2003. However, in making his determination, the examiner failed to consider the Veteran's numerous periods of ACDUTRA that, like his AD service, involved working on the flight line and exposure to jet engine noise. See e.g., August 2019 and December 2019 Veteran Statements. Moreover, the examiner did not provide rationale for his conclusion that the Veteran's bilateral hearing loss and tinnitus were not aggravated by periods of qualifying service, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Thus, these failings also must be corrected before deciding the appeal of these claims. Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Verify all periods of the Veteran's ACDUTRA and INACDUTRA. 2. After completing that requested development, obtain a supplemental medical opinion from an appropriate clinician concerning the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. To assist in making this determination, the claims file including a complete copy of this remand, must be made available, and the addendum opinion should include discussion of the Veteran's documented medical history and assertions. After reviewing the claims file, including a complete copy of this remand, the results of the Veteran's prior hearing evaluations, and his previous statements regarding the development of symptoms and treatment of his disabilities, the examiner is asked to answer the following specific questions: Is it at least as likely as not (50 percent or greater probability) the Veteran's bilateral hearing loss and/or tinnitus began during qualifying service, or, if sensorineural in nature, within a year of his discharge, or are otherwise related or attributable to his service including the result of repeated exposure to loud noise and consequent injury (acoustic trauma) while working on a flight line as an electrician, so around jet engine and other noise incident to that environment? If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner's discretion. The reviewing clinician also must bear in mind that the mere absence of evidence of treatment for a hearing loss disability and/or tinnitus in the Veteran's STRs cannot, alone, be sufficient rationale for providing an unfavorable opinion, nor if he did not meet the requirements for a ratable disability during service, including at time of separation (i.e., he only needs to have satisfied the requirements of 38 C.F.R. § 3.385 during the appeal period, not also while he was in service). As well, the reviewing clinician is advised that the Veteran is competent to report noise exposure and hearing problems in service and his symptoms and history. These reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. Rationale for the opinion is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.