Citation Nr: 21032182 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 10-25 320 DATE: May 26, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from March 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from the October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript of the hearing is in the record. In November 2012, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the November 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2013 Order, the Court vacated the Board's decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR) of the parties (VA Secretary and the Veteran). Pursuant to the November 2013 JMR, the issues were remanded for further development by the Board in April 2014, March 2015 and September 2015. In September 2016, the Board denied entitlement to service connection for left and right ear hearing loss. The Veteran appealed to the Court. In a July 2017 Order, the Court vacated the Board's decision and remanded the case to the Board for development consistent with a JMR. In November 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for development consistent with the JMR. An April 2019 Board decision again denied the claims, and the Veteran appealed to the Court. The Court vacated the April 2019 denials in a February 2020 Order and remanded the case to the Board for development consistent with a February 2020 JMR. In August 2020, the Board remanded the issues on appeal for additional development. In April 2021, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in July 2012 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. See 38 U.S.C. § 7107(c) (2012) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). In an April 2021 correspondence, the Veteran indicated that he did not wish to appear before another Board hearing and desired a decision based on the current record. 1. Entitlement to service connection for right ear hearing loss is remanded. 2. Entitlement to service connection for left ear hearing loss is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his bilateral hearing loss is related to his military service. As noted above, this matter was previously before the Board in August 2020 and was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss, including whether the Veteran's claimed in-service ear infections caused or aggravated the Veteran's pre-existing hearing loss condition. Of note, it has been determined by the record that the Veteran's right ear hearing loss pre-existed his military service. Additionally, the examiner was directed to address whether the Veteran's hearing loss is most accurately characterized as conductive, sensorineural, or mixed hearing loss. Subsequently, in December 2020, an addendum opinion was obtained. Regarding a diagnosis clarification, the examiner stated that although bone conduction thresholds are not available for review, 2008 and 2014 audiograms report conductive hearing loss in the left ear and available records "best suggest" a diagnosis of conductive hearing loss in the right ear. The examiner also provided a negative secondary service connection opinion regarding whether the Veteran's current bilateral hearing loss was due to or the result of another service-connected disability. The examiner noted that the Veteran's April 2008 audiology examination shows conductive hearing loss in the left ear. The examiner stated that the Veteran's separation examination noted chronic ear infections since the age of 16 that had been treated and resolved with no problems. Therefore, the examiner concluded that if there were no signs of ear infections indicated during service, it is less likely than not that the Veteran's bilateral hearing loss is due to his in-service ear infections. The examiner goes on to say that a baseline level of severity prior to aggravation can be determined (one opinion given indicates a negative response to this question) and notes that the earliest available service audiogram from March 1970 reports mild to moderately severe hearing loss in the right ear. The examiner stated that the current severity is not greater than the baseline. However, the Board finds that the December 2020 opinion is inadequate as it does not address the Veteran's pre-existing hearing loss condition or provide an adequate rationale for its conclusions. On remand, the Board finds that the Veteran should be scheduled for a VA examination, not an opinion, to determine the Veteran's actual current hearing loss condition. Additionally, the examiner must address whether the Veteran's claimed in-service ear infections (due to hearing protection he was required to wear) aggravated his pre-existing right ear hearing loss or caused or contributed to his left ear hearing loss. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss. a) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hearing loss is related to an in-service injury, event, or disease, including the Veteran's claimed in-service ear infections. b) Was the Veteran's right ear hearing loss aggravated or permanently worsened beyond the natural progression of the disorder during service, to include by in-service ear infections? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 2. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.