Citation Nr: 21031601 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 11-22 078 DATE: May 24, 2021 REMANDED Entitlement to service connection for right ear hearing loss, to include as secondary to left ear hearing loss, chronic suppurative otitis media, tinnitus, and/or tympanic membrane perforation of the left ear, is remanded. REASONS FOR REMAND The Veteran had active service from February 1971 to November 1973 and January 1974 to October 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2015 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2016, the Board denied the issue of entitlement to service connection for depression and anxiety and remanded the issues of entitlement to service connection for bilateral hearing loss, tinnitus, erectile dysfunction, and otitis media. The issue of entitlement to service connection for chronic suppurative otitis media was granted in a June 2016 rating decision. In a May 2017 decision, the Board granted entitlement to service connection for tinnitus and denied service connection for erectile dysfunction. The Board remanded the issue of entitlement to service connection for bilateral hearing loss. In a November 2017 rating decision, the RO granted entitlement to service connection for left ear hearing loss. In a February 2018 decision, the Board denied entitlement to service connection for right ear hearing loss. The Veteran appealed the Board's February 2018 denial of service connection for right ear hearing loss to the Court of Appeals for Veterans Claims (CAVC). In a January 2020 Memorandum Decision, the Court vacated the Board's February 2018 decision. In February 2020, the Veteran filed a motion for partial reconsideration, requesting that the Court reconsider its remedy in light of Miller v. Wilkie, 32 Vet. App. 249 (2020), which was issued a week before the memorandum decision. The motion for partial reconsideration was granted, the January 2020 memorandum decision was withdrawn, and a September 2020 memorandum decision issued instead. Entitlement to service connection for right ear hearing loss, to include as secondary to left ear hearing loss, chronic suppurative otitis media, tinnitus, and/or tympanic membrane perforation of the left ear. The Veteran seeks entitlement to service connection for right ear hearing loss. He has a current diagnosis of right ear hearing loss, as defined by VA regulation. See August 2017 VA examination Exposure to combat noise has been conceded. See November 2017 rating decision. The Veteran is also service connected for left ear hearing loss, chronic suppurative otitis media, tinnitus, and tympanic membrane perforation of the left ear. The September 2020 Memorandum Decision found that the May 2016 and August 2017 VA opinions were inadequate because the examiners failed to consider the Veteran's lay statements and hearing testimony of ongoing, post-service hearing problems. The Court noted that "there is a difference between acknowledging lay statements within the record and considering them when issuing an opinion. In this case, there is no indication that either VA audiologist considered the import of the appellant's hearing testimony about the ongoing symptomatology he experienced after he separated from service." In short, the examiners failure to consider the Veteran's testimony of continual symptomatology post service renders the opinions inadequate. The Court also found that, as in Miller v. Wilkie, 32 Vet. App. at 261, 249 (2020), the Board discussed certain statements from the Veteran in a way that would not make sense if it had considered those statements incredible; thus, the Court found that Miller is pertinent to this case and the proper remedy for this error is by ordering VA to obtain a new examination. Therefore, the Board is remanding this appeal to afford the Veteran a new VA examination and to obtain a medical opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his right ear hearing loss. Based on a full review of the record, to include the Veteran's lay statements regarding the onset and continuity of symptomatology of his disorder, please answer the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right ear hearing loss: a) had an onset during service, within one year from discharge, or is causally or etiologically due to the conceded in-service combat noise exposure; or, b) is proximately due to or aggravated (beyond a natural progression) by his left ear hearing loss? c) is proximately due to or aggravated (beyond a natural progression) by his chronic suppurative otitis media? d) is proximately due to or aggravated (beyond a natural progression) by his tinnitus? e) is proximately due to or aggravated (beyond a natural progression) by his tympanic membrane perforation of the left ear? The examiner should consider and discuss the threshold shifts seen among the June 1970 enlistment audiogram, October 1973 separation audiogram, January 1976 audiogram, July 1978 audiogram, August 17, 1978 audiogram, and August 25, 1978 separation audiogram, and the Veteran's lay statements regarding the onset and continuity of his symptoms. A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. If it is not possible to provide the requested opinions without resort to speculation, the examiner should explain why that is so. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.