Citation Nr: 21040159 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-53 878 DATE: July 2, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the claims for further development. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contends that he developed hearing loss as a result of in-service noise exposure. Specifically, he has stated that he was exposed to live weapons fire from a 50-caliber weapon while in service. See Form 9 (November 2016). Via his representative, the Veteran also argues that his exposure to hazardous noise had a negative effect on his hearing and caused or contributed to his hearing loss. See Appellate Brief (July 2020). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Veteran has been diagnosed with bilateral sensorineural hearing loss, and his exposure to hazardous noise in service has been conceded based on his military occupational specialty as Light Weapons Infantryman and combat service with Combat Infantry Badge. See SOC (October 2016). Furthermore, the Board, in its March 2019 remand, found the October 2016 VA examination to be inadequate because (1) it was not clear that the VA examiner considered the Veteran's statements of in-service acoustic trauma and (2) the opinion relied on a lack of documented hearing loss noted on the Veteran's separation exam. See BVA Decision (March 2019). The Board then remanded the claim for an addendum opinion with specific instruction to note that (1) the Veteran is competent to describe any symptoms he may have experienced since service discharge, particularly symptoms of hearing loss and (2) the lack of diagnosed hearing loss in service cannot serve as the sole basis for a negative finding. Id. Although a November 2019 VA medical opinion was obtained, this medical opinion, however, is inadequate because the essential rationale for that opinion is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). First, even though the opinion notes that the Veteran's service treatment records (STRs) are silent for complaints or findings for hearing loss, it does not provide the Board a reasoned rationale connecting the lack of STRs to the Veteran's current hearing loss. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with analysis that the Board can consider and weigh against contrary opinions."). Indeed, much of the rationale reflects findings based on a lack of in-service evidence. For instance, the opinion, in citing to in-service audiograms and examinations, concluded, "however, there is no objective evidence to suggest a significant threshold shift - either temporary or permanent - was incurred in service from conceded noise." As in the November 2019 remand, it is again noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see Stegall, supra. Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Second, the opinion is inadequate because it does not reflect a meaningful discussion of the Veteran's lay statements, despite the Board's explicit request to consider his lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."); see Stegall, supra. In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. Third, the negative medical opinion noted that the Veteran has "other health conditions that research has linked to hearing loss (i.e., cardiovascular disease)" and relied on this to support the negative conclusion reached. However, the research reviewed was not identified or otherwise summarized, and no facts specific to the Veteran vis-à-vis the medical research were discussed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Fourth, the November 2019 VA medical opinion does not address the question as to delayed onset of hearing loss due to in-service noise exposure. The examination simply provides no opinion in that regard, and thus does not adequately address whether any current hearing loss is otherwise caused by or a result of the in-service noise exposure. Therefore, the medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Fifth, the opinion did not account for specific facts, including that the Veteran wore hearing protection when exposed to noise after service. Instead, the medical opinion listed "long h/o [history of] civilian occupational noise exposure" in seemingly attributing hearing loss to it without accounting for the fact that he wore hearing protection during his post-service noise exposure, occupational and recreational, which the opinion itself notes. See Nieves-Rodriguez, supra. Although the opinion points to different causes for the disability, such as civilian noise exposure and/or other health conditions, it makes no attempt to connect the nonservice-related causes to its conclusion. Similarly, the opinion assumes that there can be only one cause of the Veteran's bilateral hearing. See, e.g., Taylor v. McDonald, 27 Vet. App. 158, 166 (2014) (faulting the Board, with respect to a claim that a current disability was caused by in-service exposure to Agent Orange, for relying on a medical opinion suggesting that the disability was related to an intervening post-service infection, where the opinion did not discuss the possibility of Agent Orange as a contributory cause). As such, the Board may not rely upon the November 2019 VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain all VA treatment records dated from September 2020 to the Present. 2. Obtain an addendum opinion from an otolaryngologist to fully address the etiology of Veteran's bilateral hearing loss disability. (a.) The physician must opine on: Whether any hearing loss disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, to include conceded in-service noise exposure. Explain. (b.) The opinion should reflect consideration of (1) the Veteran's documented relevant history and assertions, to include that his hearing loss (even if it is of delayed onset) is related to in-service noise exposure, and (2) the Veteran's post-service occupational and recreational noise exposure with use of hearing protection. (c.) The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran (e.g. inconsistent reporting of onset of symptoms, etc.), the clinician should provide a fully reasoned explanation. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.] C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.