Citation Nr: 21027922 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 18-51 485 DATE: May 7, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from February 1966 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. In an August 2019 Board decision, the Board denied the Veteran's claim to establish service connection for left ear hearing loss. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in January 2021, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR). In a January 2021 Order, the Court endorsed the JMPR, then vacated the Board's August 2019 decision and remanded the matter for readjudication in light of the JMPR. Entitlement to service connection for left ear hearing loss is remanded. As agreed by the parties in the Court-endorsed January 2021 JMPR, the Board erred in the August 2019 denial of the Veteran's appeal in relying on the negative nexus opinion offered by the August 2018 examiner relied upon the hearing thresholds at both the Veteran's entrance and separation examinations having been within normal limits. The August 2018 examiner further justified a negative nexus opinion by referencing a statement suggesting that delayed onset hearing loss is not applicable. The parties agreed in the January 2021 JMPR that the examiner's rationale is contrary to the Court's holding in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), which, in pertinent part, held that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not fatal to a service connection claim. Also, in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the Court held that evidence of a current hearing loss disability and a medically sound basis for attributing that disability to active service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Further, the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued in March 2010, it was noted that delayed-onset hearing loss and tinnitus must be considered. The Board also notes that the August 2019 Board decision found the Veteran's statements to not be credible. As stated in the JMPR, the Board did not provide adequate reasoning for finding a lack of credibility. The Veteran had consistently reported that his left ear hearing loss began in service and has continued since. As the Veteran is considered competent to report decreased hearing acuity since service, and there is no evidence that directly contradicts his assertion, the Board finds him to be credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). Based on the findings of the JMPR, the Board is remanding this issue for a new VA examination concerning whether Veteran's left hear hearing loss is related to his in-service noise exposure, as the Veteran contends. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain any outstanding VA treatment records that are not already associated with the claims file. 2. Then schedule the Veteran for an audiological examination with an examiner other than the August 2018 examiner. The electronic claims file should be made available for review in connection with this examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. (a.) The examiner must render an opinion as to whether it is at least as likely as not, (i.e., a 50 percent probability or greater), that the Veteran's current left ear hearing loss is related to his period of military service, or to any incident therein, to include as due to noise exposure. (b.) If the audiologist opines that left ear hearing loss is the result of any other process not related to in-service noise exposure, a rationale must be provided to explain fully why the current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. He/she should comment on the likelihood that the Veteran's current left ear hearing loss is due to post-service intercurrent causes wholly unrelated to his military service, such as post-service employment, or age-related issues. The audiologist must not rely solely on the fact that the Veteran's left ear hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. He or she should also take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure, the onset of left ear hearing loss, and continuity of left ear hearing loss since service. If the examiner rejects the Veteran's reports, he/she should provide a rationale for doing so. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 3. After the above actions are completed, readjudicate the issues on appeal and if the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.