Citation Nr: 22018191 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-03 586 DATE: March 28, 2022 REMANDED Entitlement to service connection for left ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1986 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing before the Board in his December 2015 substantive appeal, he subsequently withdrew his hearing request. Thus, his hearing request is deemed withdrawn. In October 2019, the Board remanded the claims for service connection for bilateral hearing loss disability and tinnitus, along with entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). During remand status, a January 2020 rating decision granted service connection for right ear hearing loss and tinnitus. This represents a full grant of the benefit sought as to right ear hearing loss and tinnitus; therefore, the Board finds that there is remaining controversy as to these matters for appellate consideration. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Also, during remand status, a June 2020 rating decision granted a 100 percent rating for posttraumatic stress disorder from June 10, 2015, under 38 C.F.R. § 4.29, and on a schedular basis from September 28, 2015. Because the 100 percent award for PTSD alone is for the entire period of the appeal for TDIU, the Board finds that the claim of TDIU is thus rendered moot. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). A TDIU may only be granted based on a service-connected disability, and is warranted only where the schedular rating is less than total. 38 C.F.R. § 4.16(a). Given the above, the only issue remaining on appeal is the claim for service connection for left ear hearing loss disability. As explained below, remand is required. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Entitlement to service connection for left ear hearing loss disability is remanded. The Veteran contends that he has left ear hearing loss disability related to in-service noise exposure. The Veteran reports service as a combat medic with exposure to 50 caliber, M-60, and M-16 gunfire, grenade launchers and explosions. Veteran states that while in basic training, a "pod" exploded several feet from his right ear. As an initial matter, the Board finds that the Veteran has a hearing loss disability for VA purposes based on his December 2019 VA examination. 38 C.F.R. § 3.385. The Board also finds that there is competent evidence of in-service noise exposure. The question for the Board is whether the Veteran's current hearing loss disability is etiologically related to his reported in-service noise exposure. A December 2019 VA medical opinion reflects that the Veteran's left ear hearing loss is not at least as likely as not caused by or a result of an event in military service. The rationale was: "Veteran had normal hearing at all tested frequencies in his left ear at his military discharge." The Board finds that the VA medical opinion is inadequate. The absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C. § 1154. Here, the opinion does not address whether the Veteran's left ear hearing loss disability, even if of delayed onset, is etiologically related to in-service noise exposure as believed by the Veteran. Therefore, to ensure that VA has met its duty to assist, remand is required for an addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). To the extent that the Veteran did not present for a 2021 VA hearing loss examination (See VA 21-2507a, November 2021), the Board notes that there is no indication that an in-person examination was required to render an adequate medical opinion in this matter and, therefore, the originating agency should not have denied the claim without attempting to obtain an adequate opinion. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran's left ear hearing loss disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with hearing loss. The clinician must opine on: Whether the Veteran's left ear hearing loss disability is at least as likely as not related to his in-service hazardous noise exposure. Explain NOTE (1): The opinion should reflect consideration of the pertinent evidence of record (e.g., the Veteran's documented relevant history and assertions). In other words, consider and expressly address the Veteran's theory that his disability stems from acoustic trauma associated with his military duties. NOTE (2): The clinician is not required to accept the Veteran's theory that his military service caused his left ear hearing loss disability, or that he had symptoms associated with it during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). NOTE (3): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (4): If another etiology is more likely the cause of the Veteran's left ear hearing loss disability, then this should be fully discussed and explained. 2. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.