Citation Nr: 21028132 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-12 062 DATE: May 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) for the United States Army National Guard from July 2005 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. The Veteran was scheduled for a Board videoconference hearing in October 2016. However, he withdrew his request the same month. In January 2018, the claims for service connection for an acquired psychiatric disorder to include PTSD, tinnitus, and bilateral hearing loss came before the Board and were remanded for further development. In May 2018, the Board denied the claims for entitlement to service connection for tinnitus and bilateral hearing loss and remanded the claim for an acquired psychiatric disorder. The Veteran appealed the Board's May 2018 denial of service connection for bilateral hearing loss and tinnitus to the Court of Appeals for Veterans Claims (Court) and in a December 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), finding that the denial of service connection for bilateral hearing loss was based on an inadequate VA medical opinion; the remand for an acquired psychiatric disorder was not disturbed. In accordance with the Court's Order, the Board remanded the claims for additional development in October 2019. In a December 2019 rating decision, the RO granted service connection for tinnitus. In March 2020, the claim for PTSD was denied and the claims for an acquired psychiatric disorder other than PTSD and bilateral hearing loss were again remanded. In November 2020, the Board denied the claim for an acquired psychiatric disorder and again remanded the claim for bilateral hearing loss for an adequate VA medical opinion. Unfortunately, the Board must again remand the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the February 2021 VA examination report, the examiner found the Veteran did not meet the VA criteria for a hearing disability and therefore opined it was less likely than not his hearing loss was related to military service. A March 2021 addendum clarified that any prior diagnosis was not indicative of permanent hearing loss as the Veteran presented at the 2019 and 2020 examinations with normal hearing. The February 2021 opinion and addendum are both inadequate. First, the examiner stated that as 2019 and 2020 VA audiograms showed no hearing loss for VA purposes, the disability had resolved; however, the examiner did not explain the resolution of the disability. Regardless of the resolution of the bilateral hearing loss, service connection may be warranted if there was a disability present at any point during the claim period, even if it is not present at the time of the VA examination. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Second, the examiner did not opine as to whether the diagnosed hearing loss in the 2013 VA examination was related to service, to include military noise exposure. As such, the Board must remand the claim for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, forward the Veteran's claim file to the audiologist who conducted the February 2021 medical opinion, if available, for the purpose of obtaining an addendum medical opinion as to the nature and etiology of the Veteran's current bilateral hearing loss disability. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: Note: Regardless of whether the bilateral hearing loss has since resolved, there is evidence of a "current" bilateral hearing loss disability as it was diagnosed during the period on appeal. (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss disability that was diagnosed at the June 2013 VA examination is a result of the Veteran's military noise exposure while working on Chinook helicopters without the use of HPDs. (b) If the examiner concludes that the 2013 diagnosis of a bilateral hearing loss has resolved or no longer shows pathology, please explain how this is so, and in doing so, address the Veteran's current hearing loss difficulties. In doing so, specifically address: (i) the December 2012 Audiometry Examination and Report and the June 2013 VA examination showing a diagnosis for bilateral hearing loss; and, (ii) the Veteran's lay reports, including those in his June 2012 Statement in Support of Claim and February 2013 VA Treatment Record, of the onset of his hearing loss from service. The examiner is reminded that the Court has held that the March 2003 audiological examination is not relevant to the Veteran's period of ACDUTRA service beginning in July 2005. A complete rationale for all proffered opinions must be provided. (Continued on the next page) 3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.