Citation Nr: 21030311 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-26 213A DATE: May 18, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran and his spouse testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, the Board, in pertinent part, denied the Veteran's claim of entitlement to service connection for bilateral hearing loss in February 2019. See February 2019 BVA Decision. The Veteran appealed the February 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2020 Memorandum Decision, the Court vacated the portion of the Board's decision that denied service connection for bilateral hearing loss and remanded the matter for further proceedings. See August 2020 CAVC Decision. Entitlement to service connection for bilateral hearing loss is remanded. In the August 2020 memorandum decision, the Court noted that the Veteran underwent VA audiological examinations in April 2014 and November 2016. To this end, the Court indicated that the April 2014 VA examiner based the opinion on the Veteran's April 1969 enlistment audiogram, which showed mild hearing loss, and his May 1973 separation audiogram, which was normal and absent for any indication of significant auditory threshold shifts. The Court further noted that the Board afforded significant probative weight to the November 2016 VA examiner's opinion, which relied, at least in part, on the examiner's finding that the Veteran's entrance and separation examinations were within normal limits and that his hearing loss was largely due to known complications from middle ear surgery for placement of a prosthesis for an inherited form of hearing loss. See August 2020 CAVC Decision. In the August 2020 Memorandum decision, the Court held that the Board erred by relying on the April 2014 and November 2016 VA examinations, which did not consider the Veteran's pertinent medical history and lay testimony. Specifically, the April 2014 VA examiner failed to account for relevant details of the Veteran's audiological history, to include lay testimony indicating that he suffered complete loss of hearing for three days while he was serving on active duty in January 1972. In addition, the April 2014 VA examiner failed to consider a July 1978 private medical opinion, which indicates that the Veteran's mixed bilateral hearing loss manifested while he was serving on active duty and that it was probably a result of in-service traumatic noise exposure. See April 2014 C&P examination; May 1978 VA Form 21-526 Veterans Application for Compensation or Pension; September 2013 Medical Treatment Record Non-Government Facility; July 2015 VA Form 9. The Court further held that the Board erred by relying on the November 2016 VA medical opinion. To this end, the November 2016 VA examiner relied on the Veteran's May 1973 separation report of medical examination to support her conclusion that his hearing loss was less likely than not the result of an event during service. Rather, the examiner determined that the Veteran's hearing loss was caused by surgeries he underwent to correct a middle ear defect. However, the examiner did not address the Veteran's contentions or the July 1978 private medical opinion which found that the Veteran's diagnosed bilateral mixed hearing loss was "probably" a result of in-service noise exposure. Notably, the July 1978 private medical opinion was proffered before the referenced middle ear surgeries took place. See November 2016 C&P examination; September 2013 Medical Treatment Record Non-Government Facility. Given the Court's finding, a remand is required to obtain an addendum opinion to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss. Moreover, in a November 2013 medical opinion, a private provider, Stuart Trembath, indicated that the Veteran had been a patient in his office "for many years." However, apart from the November 2013 private medical opinion, no medical records from the provider have been associated with the claims file. See February 2014 Medical Treatment Record Non-Government Facility, Thus, the Board finds that a remand is also warranted to obtain medical records from the abovementioned private provider. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any outstanding medical records from Hearing Associates and Stuart Trembath, M.A., CCC-A. 2. After completion of the above development, obtain an addendum opinion by an appropriately qualified examiner to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral hearing loss is etiologically related to his active duty service, to include as due to in-service noise exposure from jets, A7 and F4 aircraft, and aircraft catapults? Please explain why or why not. (Continued on the next page) In rendering the opinion, the examiner should address the July 1978 private medical record which shows that the Veteran had been experiencing hearing loss for at least six years, though probably longer, and indicates that the underlying sensorineural component of his hearing loss was probably secondary to his in-service traumatic noise exposure. Notably, the July 1978 private medical opinion was proffered before the referenced middle ear surgeries took place. In addition, the examiner should consider S. Trembath's November 2013 private medical opinion. 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 K. Justis, 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.