Citation Nr: 22008096 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-04 090 DATE: February 11, 2022 REMANDED Service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served in the South Carolina Army National Guard from May 1975 until his honorable retirement in March 1996. During his service, he served on active duty for training from August 1975 until his honorable discharge in December 1975 and had numerous other periods of active duty for training and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 decision by the Columbia, South Carolina, Regional Office of the United States Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In March 2021 and October 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to verify the Veteran's military service and obtain adequate VA medical examinations and opinions addressing the etiology of his bilateral hearing loss. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The "general legal concept [is] that substantial compliance means actual compliance with . . . essential objectives." Mo. Veterans Comm'n v. Peake, 22 Vet. App. 123, 127 (2008); see Dyment v. West, 13 Vet. App. 141, 14647 (1999) (it is substantial compliance with remand orders, not absolute compliance, that is required). Here, the VA Regional Office has not substantially comply with the Board's prior remand directive because the medical opinions obtained remain insufficient. Thus, remand is required to obtain an addendum opinion. 1. Service connection for bilateral hearing loss is remanded. Four medical opinions are of record addressing the etiology of the Veteran's bilateral hearing loss. Each opinion is insufficient. Specifically, each opinion fails to address the Veteran's qualifying periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), even though the Board has clearly indicated in its prior remands that such an analysis is required. Most recently, the same VA-contracted examiner, Dr. Leadbitter, offered two negative-nexus opinions, dated in August 2021 and November 2021. Specifically, she was asked to address: whether the Appellant's bilateral hearing loss is at least as likely as not related to his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service) with consideration for the Appellant's duties during all included periods of service (Field Wireman prior to September 1992 and MSE Transmission System Operator from September 1992); and including aggravated beyond its natural progression by his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service)with consideration for the Appellant's duties during all included periods of service (Field Wireman prior to September 1992 and MSE Transmission System Operator from September 1992). In each opinion, she failed to discuss whether any in-service noise exposure during the Veteran's qualifying periods of ACDUTRA and INACDUTRA may have contributed to the Veteran's bilateral hearing loss. Instead, she focused solely on the Veteran's active-duty training that occurred between August and December 1975 when forming her opinion. Therefore, the Board finds remand is required to obtain an addendum opinion that specifically addresses whether, during any qualifying period of ACDUTRA or INACDUTRA, the Veteran's in-service noise exposure caused his bilateral hearing loss such that his hearing loss is at least as likely as not related to his military service. 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. Obtain an addendum opinion from the August 2021/November 2021 examiner, Dr. Leadbitter, or another appropriately qualified clinician if that examiner is unavailable, 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 the following: 3. Whether the Veteran's bilateral hearing loss is at least as likely as not related to his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service)? The examiner MUST consider and address his duties during all included periods of service, to include: (1) Field Wireman prior to September 1992 and (2) MSE Transmission System Operator from September 1992. 4. Whether the Veteran's bilateral hearing loss was aggravated beyond its natural progression by his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service)? The examiner MUST consider and address his duties during all included periods of service, to include: (1) Field Wireman prior to September 1992 and (2) MSE Transmission System Operator from September 1992 The examiner is directed to the Board's prior remand orders for information about the law regarding the characterization of the Veteran's military service, and the examiner is directed to the March 2021 DPRIS Response for factual information. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his hearing loss, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. 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 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. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. 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.