Citation Nr: 21028781 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-36 735 DATE: May 12, 2021 REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1971 until his honorable discharge in February 1979. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal, Vietnam Campaign Medal, and Vietnam Cross of Gallantry Medal with Palm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently remanded by the Board in November 2018 to obtain an addendum opinion to determine the nature and etiology of the Veteran's right ear hearing loss. This matter has returned to the Board for further consideration. Unfortunately, there has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim must be remanded because the record does not show that the Veteran was notified of an audiological examination ordered on remand. In accordance with the November 2018 remand directives, the RO requested a QTC Medical Services, Inc. (QTC) audiological examination to determine the nature and etiology of the Veteran's right ear hearing loss. The QTC examination was cancelled in September 2019 because "the Veteran was unavailable for exam." In the July 2020 Supplemental Statement of the Case (SSOC), the RO continued the denial of entitlement to service connection for right ear hearing loss based, in part, on the Veterans failure to report for the scheduled examination." However, it is unclear as to whether the Veteran was provided notice of the examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In response to the July 2020 SSOC, the Veteran's representative stated the Veteran "has no independent recollection of a C&P examination scheduled by QTC." The representative stated, "due to the Veteran's age, hearing loss, and unfamiliarity with the QTC program, or related processes, we are requesting the C&P exam be rescheduled." See July 2020 Statement in Support of Claim. Although there is a copy of the September 2019 Exam Scheduling Request in the claims file, there is no copy of the examination notice that was sent to the Veteran. The evidence of record does not contain any letter to the Veteran notifying him of the date, time, and place of the examination. Thus, it is simply unclear whether the Veteran was properly notified of the scheduled examination. Kyhn, 716 F.3d 572. Additionally, there is no notice to the Veteran of the consequences for a failure to report for a VA scheduled examination without good cause. Therefore, the Board finds the Veteran should be afforded another opportunity to appear for an examination in connection with his claim, and if he does not report, the file should be properly documented regarding notice of the appointment. The Board reminds the Veteran the duty to assist is not always a one-way street, and he has an obligation to actively participate, including attending a scheduled examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is advised he is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so may result in denial of his claim, or the claim may be evaluated on the evidence of record. See 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain any outstanding VA treatment records and associate them with the claims file. 2. The AOJ should contact the Veteran and confirm his current address so the examination may be scheduled at the appropriate facility. 3. After associating any newly obtained evidence with the claims file, schedule the Veteran for an audiological examination to assess the etiology of the claimed right ear hearing loss disability. The claims file and a copy of this Remand must be made available to the examiner. Following a review of the record, the examiner should address the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right ear hearing loss is related to active duty service, to include exposure to hazardous noise. (b) Further, state whether the Veteran's right ear hearing loss manifested within one year of his service separation in February 1979. The examiner should specifically discuss the Veteran's service treatment records demonstrating changes in hearing thresholds during service. (c) If the Veteran's right ear hearing loss is determined not to be etiologically related to the Veteran's service, identify the etiology of the right ear hearing loss. In providing the requested opinion, the examiner should elicit a complete history from the Veteran. The examiner must consider and discuss the Veteran's lay statements regarding in-service noise exposure and the onset and progression of his hearing loss. It should be noted, the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner is reminded that the lack of symptoms, diagnosis, or treatment of hearing loss during service cannot be the sole basis of a negative etiology opinion. A complete rationale for the opinion must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. The AOJ must send the Veteran and his representative a letter with the date, time, and place of the Veteran's scheduled examination, and include a copy of this letter in the claims file. The letter must detail the consequences of the Veteran's failure to report for the examination. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.