Citation Nr: 21040686 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 09-26 900 DATE: July 6, 2021 REMANDED The claim for service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1979 until her honorable discharge in September 1989. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a decision by the Fort Worth, Texas, Regional Office of the United States Department of Veterans Affairs (VA). In May 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The Board issued a decision denying entitlement to service connection for bilateral hearing loss in September 2019. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties entered into a Joint Motion for Remand (JMR) at the Court. Pursuant to the JMR, the parties agreed that the Board erred in its September 2019 decision to the extent that it relied on an inadequate VA medical opinion and failed to sufficiently address the Veteran's lay statements regarding the onset of her hearing loss. The Court entered an order vacating the Board's September 2019 decision and remanding the case for readjudication. Consistent with the Court's order and the parties' JMR, in February 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain an addendum opinion as to the etiology of the Veteran's bilateral hearing loss, which the VA Regional Office accomplished. The case now returns to the Board. On review of the addendum opinion, the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). First, within the parties JMR before the Court, they cited the fact that the Veteran did not undergo an audiologic examination upon separation from military service in 1989. Yet, the April 2017 VA examiner cited such an examination in error. Once again, the March 2021 VA addendum opinioncompleted by the same examinercited a non-existent 1989 separation audiogram as part of the basis for his opinion. Therefore, due to reliance on an inaccurate factual premise, the opinion is not adequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Second, as part of the February 2021 remand order, the Board directed the examiner as follows: The examiner must also address the Veteran's lay statements regarding her employment at an airport following service, including her statements that she discovered that she had some hearing loss in 1990. (Emphasis added.) Within the March 2021 VA addendum opinion, the examiner did not address any of the Veteran's lay statements regarding her employment at an airport following service, including her statements that she discovered that she had some hearing loss in 1990. Therefore, the opinion is not adequate and does not comply with the Board's prior remand directive. Dalton v. Peake, 21 Vet. App. 23, 3940 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history). Due to the repeated inaccuracies of the April 2017/March 2021 VA examiner, the Board finds an addendum opinion is warranted from a different examiner. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from an appropriate clinician other than the April 2017/March 2021 VA audiologist, W. M. B., to provide an opinion addressing the onset and etiology of the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss had its onset in or is otherwise etiologically due to an in-service event, injury, or disease. In rending his or her opinion, the examiner MUST address the following within his/her opinion: (a.) The Veteran's lay statements regarding her employment at an airport following service, including her statements during a VA Regional Office hearing officer in that she discovered that she had some hearing loss in 1990. (See DRO Hearing Transcript received by VA April 29, 2010). In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's in-service noise exposure associated with her military occupational specialty as a wideband communication equipment technician, which the Department of Defense's Duty MOS Noise Exposure Listing characterizes as having a "moderate" probability of exposure to hazardous noise. (b.) The Veteran's testimony at the April 2014 Board hearing that she worked with equipment that used high-pitched frequencies while in service. (c.) The Veteran's in-service audiometric test results from April 1979, May 1983, and July 1988. The examiner is informed that the Veteran did not undergo an audiologic examination upon her separation from military service in 1989. (d.) The possibility of delayed onset hearing loss following acoustic trauma, causes of hearing loss, and describe how hearing loss that results from noise exposure generally presents or develops, in determining the likelihood that any current hearing loss experienced by the Veteran was caused by noise exposure in service. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her hearing loss, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner is informed that that the absence of contemporaneous service treatment records or medical records in general, standing alone, is an insufficient basis for a negative medical nexus opinion. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of hearing loss in service or the assertion that an in-service event, injury, or illness led to her current hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.