Citation Nr: 23022167 Decision Date: 04/12/23 Archive Date: 04/12/23 DOCKET NO. 19-17 856 DATE: April 12, 2023 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board Virtual Hearing in January 2023; however, in a January 2023 Correspondence, he withdrew his hearing request. Previously, the claims were before the Board and were remanded for additional development in January 2023. The Board's prior remand directives have not been substantially complied with and will be discussed in the remand section. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Hearing Loss and Tinnitus The Veteran contends that service connection is warranted for his bilateral hearing loss and tinnitus. Previously, the claims were before the Board in January 2023. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for an addendum medical opinion. In addition, the July 2018 VA examiner opined that the Veteran's tinnitus was secondary to his bilateral hearing loss. As such, the tinnitus claim is inextricably intertwined with his hearing loss claim herein and must be remanded concurrently. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral hearing loss and provide an opinion as to whether: a. Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hearing loss was caused by an in-service event, injury, or disease. b. Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's tinnitus was caused by an in-service event, injury, or disease. c. Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's tinnitus was proximately caused or aggravated (permanently worsened beyond its natural progression) by his bilateral hearing loss or a service-connected anxiety disorder? If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the base line manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. Any opinions offered should be accompanied by the underlying reasons for the conclusions. The examiner should consider, but is not limited to, evidence of potentially hazardous, in-service noise exposure. See DD Form 214 (notes sharpshooter badges [M-14 and M-16]). The examiner is further advised that the Board has found the July 2018, August 2018, and September 2018 VA opinions to be inadequate for lack of rationale. If the examiner is unable to offer any of the requested opinions, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. (Continued on the next page) ? 2. Readjudicate the claims. PAULA B. McCARRON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Long-Ellis, Erica 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.