Citation Nr: 21032523
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 15-43 139
DATE: May 27, 2021

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from November 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

In a May 2019 Board decision, entitlement to service connection for bilateral hearing loss was denied, because the evidence did not support a nexus between the Veteran's hearing loss and his military service. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In October 2020, a memorandum decision was issued by CAVC setting aside the Board's decision and reversing the finding that the duty to assist had been met. CAVC found that the Veteran's lay statements were the type of evidence that would support his claim for determining the etiology of his hearing loss. In Davidson v. Shinseki, CAVC "explicitly rejected the view that 'competent medical evidence is required...[when] the determinative issue involves either medical etiology or a medical diagnosis.'" 581 F.3d 1313, 1316 (Fed. Cir.  2009).

In addition, the July 2013 VA examination was not adequate, because the examiner did not consider the lay statement of the Veteran concerning his hearing loss starting in service. The examiner's rationale was based on the lack of evidence in the service treatment records. Therefore, a new VA examination must be afforded to the Veteran in compliance with the CAVC decision. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

This matter is REMANDED for the following action:

1. Obtain any outstanding medical treatment records and associate them with the claims file. 

2. Then, schedule the Veteran for a new VA examination with an appropriate examiner to determine the nature and etiology of his bilateral hearing loss. A copy of the claims file, including a copy of this remand, must be made available to the examiner for review. The examiner is asked to review the claims file in its entirety and indicate in the record that he or she has done so. The examiner is then asked to render an opinion as to whether the Veteran's bilateral hearing loss was at least as likely as not (50 percent probability or greater) incurred in or caused by his active military service. 

The examiner should comment regarding the contention that hearing loss examinations conducted during the Veteran's period of service and up until 2002 were not adequate to evaluate changes in hearing.  The examiner should also address the allegation that there was delayed onset hearing loss.  The examiner must acknowledge the Veteran's lay statements about his hearing loss starting in service and complaints of hearing loss after service. 

A clear rationale must be provided for all opinions expressed. The examiner must consider Veteran's lay statements, as well as the previous VA examinations and post-service treatment records. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion.

3. After ensuring compliance with his remand, readjudicate the claim on appeal. 

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Harris, Attorney Advisor

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.