Citation Nr: 21039850 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-10 261 DATE: July 1, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 1966 to December 1967. The Veteran testified before a Veterans' Board of Appeals, Veterans Law Judge (VLJ) at a videoconference hearing in March 2019. This appealed issue was previously before the Board in April 2019, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. The issue has now been returned to the Board for further appellate consideration. Regrettably, for the reasons noted below, the Board finds another remand is required. 1. Entitlement to right ear hearing loss is remanded. First, the Board finds that there has not been substantial compliance with its prior remand directing the examiner to assess the etiology of the Veteran's right ear hearing loss. See April 2019 Board Remand. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the December 2019 VA examiner provided a nexus opinion as to direct service connection, and opined that the Veteran's right ear hearing loss was NOT at least as likely as not related to an in-service injury, event, or disease. However, the examiner went on to opine that even though the Veteran entered "military service with mild hearing loss in the left ear, the documentation of hearing within normal limits at separation indicates that it is NOT at least as likely as not (50/50 probability) that veteran's current hearing loss is related to her [sic] military service." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one."). Notably, the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89(1992). Rather, the proper inquiry is whether the Veteran's current hearing loss is related to the Veteran's conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The examiner's opinion as to the etiology of the disability should consider the Board's conceded in-service acoustic trauma, to include noise from his military occupational specialty (MOS) of armor crewman and in-service acoustic trauma from two days of live fire in July 1967 resulting in treatment for ringing in the Veteran's ears. See DD-214; July 1967 STRs at 8. As such, an addendum opinion is required to adequately address the etiology of the Veteran's diagnosed right ear hearing loss in conjunction with his CONCEDED IN-SERVICE ACOUSTIC TRAUMA. The Board reminds the AOJ that the Veteran is currently service connected for left ear hearing loss. THE INSTANT APPEAL IS FOR RIGHT EAR HEARING LOSS. The matter is REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained in October 2020. 2. Return the examination to the December 2019 examiner, and request that the examiner ascertain the nature and etiology of the Veteran's diagnosed RIGHT EAR HEARING LOSS. A complete and detailed rationale should be given for all opinions and conclusions expressed. The examiner should review the claims file and provide an opinion. The examiner should specifically opine as to: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed RIGHT EAR HEARING LOSS had its onset in service, or is otherwise etiologically related to service, to include any incident thereof. b.) Please specifically comment on the threshold shift in the Veteran's hearing acuity, as evidenced by his entrance examination in October 1965 and his last audiological examination in September 1967. c.) Please specifically comment on the fact that the Veteran was an armor crewman in the service, and was repeatedly exposed to acoustic trauma from gunfire. Please noted that the Board has already conceded in-service hazardous noise exposure. d.) Please specifically note that prior to November 1, 1967, service department test results were reported in standards set forth by the ASA. Since November 1, 1967, those standards have been set by the ISO-ANSI. Please comment on whether the Veteran's October 1965 entrance examination and the September 1967 separation examination audiological examination results were reported in different standards, or if the units were converted to the same standard. Please perform any conversion necessary to obtain meaningful results. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. The examiner is reminded that noting that hearing loss did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.