Citation Nr: 21040375 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-41 968 DATE: July 3, 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 Navy from July 1990 to March 1994. Information in the file indicates the Veteran also served in the United States National Guard from 1998 to 2001. In June 2018 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2018 and October 2020, the Board remanded the case to the RO for additional development. The appeal of the Veteran originally included a claim for service connection for a lower back disability. In a July 2020 rating decision, the RO granted service connection for degenerative arthritis lumbar spine. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for the lower back. Holland v. Gober, 10 Vet. App. 433, 436 (1997). With apologies to the Veteran, the Board must remand his claim again. Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). In the October 2020 remand, the Board noted that the September 2019 VA examiner found that such hearing loss was unrelated to his military service. The examiner based his opinion on a lack of a significant threshold shifts during service, a normal separation audiogram, and a 2005 Institute of Medicine (IOM) report finding no evidence to support delayed onset of noise-induced hearing loss. However, the examiner did not discuss the significance of another portion of the cited IOM report suggesting awareness of noise-induced hearing loss may be delayed even when onset may not be. Stated another way, hearing loss may have started in service or within one year of separation 38 C.F.R. §§ 3.307, 3.309, but only noticed later by the Veteran as suggested by the IOM study. The Veteran underwent a VA examination in March 2021. Once again, the examiner concluded the Veteran's hearing loss is unrelated to his service. The examiner offered the same rationale: a lack of a significant threshold shifts during service, a normal separation audiogram, and a 2005 Institute of Medicine (IOM) report finding no evidence to support delayed onset of noise-induced hearing loss. The examiner, however, did not fulfill the Board's directive to discuss the IOM report suggesting awareness of noise-induced hearing loss may be delayed even when onset may not be. The remand is necessary to provide the missing information in a new VA examination or opinion. In addition, as noted above, after the Veteran's active duty service in the United States Navy ending in 1994, the Veteran subsequently served in the United States National Guard from 1998 to 2001. The information indicates he had additional noise exposure as a TOW missile operator. The Veteran did not disclose his National Guard service in his initial claim and the file does not include the National Guard records including, crucially, any treatment records. Accordingly, before the VA examination, the RO should ask the Veteran to provide information regarding his service in the United States Army National Guard, including a Form 22, if available. Thereafter, development for the National Guard records, including treatment records, should be undertaken. Ongoing medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to provide information regarding his service in the United States National Guard, including his Form 22 if available, identifying his dates of service, his unit or units in the National Guard, and any other information that would help VA locate his records. 2. Contact the Veteran's National Guard unit or the appropriate Federal custodian for any medical records of the Veteran and obtain records as to his dates of National Guard service including all dates of ACDUTRA and INACDUTRA. All actions to obtain the requested records should be documented fully in the claims file. 3. Ask the Veteran to identify all outstanding treatment records relevant to his hearing loss claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability arose during service or is otherwise related to service, to include as due to noise exposure. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should explain why the Veteran's current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. The examiner MUST CONSIDER AND DISCUSS whether hearing loss may have begun in service or during the first post-service year but was only NOTICED later on as suggested by the same 2005 IOM study cited by the prior VA audiological examiner. The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.