Citation Nr: 21042166 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-36 353 DATE: July 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REFERRED The Board's July 2020 remand referred to the Agency of Original Jurisdiction (AOJ), for appropriate action, claims of service connection for bilateral ear tympanic membrane perforation and otosclerosis (raised by the Veteran's representative in July 2020 and the record itself). No action was taken on the referrals. [Notably, those matters are inextricably intertwined with the matter at hand.] The matters are again referred to the AOJ for appropriate action. 38 C.F.R. § 20.904. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 26, 1975 to October 23, 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 Department of Veterans Affairs (VA) rating decision. In March 2018, a video conference hearing was held before the undersigned; a transcript is in the record. In September 2018 and July 2020, this matter was remanded for additional development. [The July 2020 Board decision also denied service connection for bilateral chronic otitis media and remanded for further development the matter of service connection for tinnitus. A March 2021 rating decision granted service connection for tinnitus. Consequently, that issue is no longer before the Board.] Entitlement to service connection for bilateral hearing loss The Board's July 2020 remand found the claim of service connection for bilateral hearing loss inextricably intertwined with the raised claims of service connection for tympanic membrane perforation and otosclerosis (which were referred to the AOJ for further development and adjudication). No action was taken by the AOJ on the referrals. Consequently, the referred claims of service connection for tympanic membrane perforation and otosclerosis must be fully developed and adjudicated before the hearing loss claim is readjudicated. Unfortunately, there has not been substantial compliance with the Board's previous remand directives and corrective action remains necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). On March 2021 examination, the examiner provided a negative nexus opinion (to service) without opining on whether tympanic membrane perforation and otosclerosis caused/aggravated his hearing loss. Further development for a fully adequate medical advisory opinion (addressing tympanic membrane perforation and otosclerosis) is necessary. The matter is REMANDED for the following: 1. Arrange for all further development necessary (to specifically include an advisory medical opinion by an appropriate medical clinician addressing whether any additional pathology was superimposed on the Veteran's pre-existing (noted on service entrance) bilateral ear disabilities, during service, including as due to the submersion in mud reported injury which is considered credible, considering the treatment findings noted in service), and adjudicate the claims of service connection for tympanosclerosis and tympanic membrane perforations. Inform the Veteran of the decisions on the claims, and afford him opportunity to respond. 2. After the development requested above is completed, forward the Veteran's claims file to an appropriate clinician (such as an otologist/ENT clinician) for review and an advisory medical opinion regarding the etiology of his bilateral hearing loss, in particular whether it was incurred in service (to include as due to the reported submersion in mud injury therein, considering the report credible) or is secondary to any ear disability that is found to be service-connected (such as the otosclerosis claim now pending adjudication). The consulting provider should: (a.) Identify the likely etiology for the Veteran's bilateral hearing loss, specifically indicating whether it is at least as likely as not (a 50% or better probability) (a) etiologically related directly to his service (was incurred or aggravated therein, including as due to a submersion in mud injury therein) or (b) secondary to (was caused or aggravated by) any ear disability that is found to be service-connected. (b.) If the Veteran's hearing loss is determined to not be directly related to his service, and not have been caused or aggravated by a service-connected disability, identify the etiology for such disability that is considered to be more likely (based on evidence in the record), and explain why that is so. The examiner must include rationale with all opinions. The rationale must reflect acknowledgement that the absence of a diagnosis of hearing loss in service is, of itself, an insufficient basis for the conclusion that such disability is not related to service. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.