Citation Nr: 21027794 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-23 607 DATE: May 6, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). In July 2014, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of that hearing is associated with the claims file. By way of history, a January 2015 Board decision reopened the claim on appeal and remanded the matter to obtain a VA examination. The Board remanded the matter again in October 2016, and noted that in-service audiological evaluations needed to be converted from ASA to ANSI/ISO units. The matter was additionally remanded for a VA examination to address whether Veteran had pre-existing left ear hearing loss prior to service, whether he had hearing loss during a 1973 Tennessee Valley Authority (TVA) hearing test, and whether the service-connected tinnitus caused or aggravated his hearing loss. In January 2018, the Board noted that the December 2016 VA addendum examination report did not address whether the Veteran's service-connected tinnitus caused or aggravated the bilateral hearing loss. Accordingly, the matter was remanded to obtain another VA examination report. The matter was further remanded to obtain VA treatment records identified by the Veteran. In a February 2020 decision, the Board denied the Veteran's service connection claim on appeal. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court vacated the Board's decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that Board erred by relying, in part, on an inadequate April 2019 VA examination with respect to whether the Veteran's bilateral hearing loss was aggravated by his service-connected tinnitus. The Court noted that the Board had, in a January 2018 Remand, requested an opinion as to whether the hearing loss had been permanently worsened beyond normal progression (aggravated) by the Veteran's service-connected tinnitus disability" and, thereby impermissibly imposed a requirement that the hearing loss be permanently worsened in contravention of the holding in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Bilateral Hearing Loss As noted above, the Court found the Board erred by requesting and relying on a VA examination report that required "permanent" worsening of the bilateral hearing loss. In Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court held that secondary service connection did not require permanent worsening of the condition being claimed by the service-connected disability, and required considering whether there has been any worsening, no matter how incremental, even if not above and beyond the condition's natural progression. Accordingly, the Court directed the Board to provide a medical opinion as to whether the Veteran's hearing loss was aggravated by his service-connected tinnitus that complied with 38 C.F.R. § 3.310(b) and the holding in Ward. In compliance with the JMR, this matter is therefore remanded to obtain another VA examination report. The matter is REMANDED for the following action: Obtain an addendum opinion to address the claim for service connection for bilateral hearing loss. It is left to the discretion of the examiner whether an examination of the Veteran is necessary. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral hearing loss was caused by his service-connected tinnitus? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral hearing loss was aggravated by his service-connected tinnitus? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner must provide separate opinions and rationales for causation and aggravation. Secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.