Citation Nr: 22013263 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-10 424 DATE: March 9, 2022 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1968 to April 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing has been associated with the record. The Board previously remanded this matter in January 2020 and September 2021 for additional development. Unfortunately, as discussed below, the Board is not satisfied there was substantial compliance with its prior remand directives. Therefore, the appeal must be remanded once again. See Stegall v. West,11 Vet. App. 268, 271(1998); D'Aries v. Peake,22 Vet. App. 97, 105 (2008). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for left ear hearing loss is remanded. The Veteran seeks entitlement to service connection for left ear hearing loss, which he contends was incurred in or caused by military noise exposure. He is already service connected for right ear hearing loss. The Veteran's exposure to hazardous noise during service in Vietnam has already been conceded due to his military occupational specialty (MOS) as a combat engineer. The Veteran maintains that he experienced hearing loss during service that has continued to worsen ever since. The Board notes that the Veteran was found to have a hearing loss disability in his left ear at his July 1968 enlistment examination. After converting the results of the July 1968 audiogram from ASA to ISO units, puretone thresholds in the left ear at frequencies 500, 1000, 2000, and 4000 hertz were 30, 25, 25, and 40 decibels respectively. The Veteran was noted on the examination report to have defective hearing; nonetheless, he was found fit for duty. The Veteran has repeatedly denied that he had any hearing loss prior to military service. Subsequently, at his April 1970 separation examination, an audiogram showed puretone thresholds in the left ear at frequencies 500, 1000, 2000, 3000, and 4000 hertz of 10, 10, 10, 30, and 50 decibels respectively. As hearing loss in the left ear was noted upon the Veteran's entry onto active duty, the Veteran's claim must be considered based on a theory of aggravation of a preexisting disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). In the September 2021 remand, the Board directed the RO to obtain an addendum medical opinion assessing the nature and etiology of his left ear hearing loss, to include as secondary to his right hearing loss. Specifically, from a different examiner who conducted the July 2020 examination. In September 2021, a VA opinion was obtained from the same examiner who provided the July 2020 VA examination. Furthermore, the examiner again failed to provide a clear opinion as to whether the Veteran's left ear hearing loss was aggravated, or permanently worsened in severity, during service and did not address whether the shift in left ear hearing loss represents aggravation beyond its natural progression. Moreover, the examiner did not consider or address the Veteran's MOS, documented exposure to acoustic trauma during service, or his competent and credible reports of worsening hearing both during and subsequent to service, as specifically requested by the Board in its remand directives. Moreover, the RO did not instruct the examiner to provide an opinion regarding secondary service connection as was requested in the September 2021 remand. Consequently, the examiner did not have an opportunity to opine as to whether the Veteran's left ear hearing loss is aggravated by his service-connected right ear hearing loss. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (when a theory of entitlement is raised by the record, the Board must consider it). As such, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directives. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain a medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file, including a copy of this REMAND, to a VA audiologist WHO HAS NOT YET PROVIDED AN OPINION IN THIS CASE to provide an addendum medical opinion addressing the nature and etiology of the Veteran's left ear hearing loss. A full audiological examination need not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. Following a thorough review of the claims file, the examiner must provide a fully articulated medical opinion addressing the following: (a) Is it clear and unmistakable (obvious, manifest, and undebatable a very high burden of proof) that the Veteran's left ear hearing loss WAS NOT aggravated (permanently worsened in severity) during service? In providing a response to question (a), the examiner must adequately consider and address the pertinent evidence of record, to include: the audiograms taken upon entrance and separation; the Veteran's MOS of combat engineer and his conceded exposure to acoustic trauma during service in Vietnam; the Veteran's lay statements and hearing testimony that he experienced worsening hearing during service and it has continued to worsen ever since; and the July 2020 and September 2021 VA opinions that the Veteran's left ear had "normal to mild hearing loss" upon entry, but "moderate hearing loss" at separation. (b) Whether the Veteran's left ear hearing loss is aggravated by (increased in severity beyond its natural progression) his service-connected right ear hearing loss? In addressing the matter of aggravation, the examiner should note that it is not required that the claimed disability is shown to be aggravated beyond natural progression "predominantly" by right ear hearing loss, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disability. Additionally, aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice-connected disability. Any increase in disability is sufficient. The examiner is advised that the Veteran is competent to report his medical history and symptoms and such reports must be acknowledged and considered in formulating any opinion. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. The Board reminds the examiner and the RO that compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 3. To avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, supra. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.