Citation Nr: 25002829 Decision Date: 02/26/25 Archive Date: 02/26/25 DOCKET NO. 19-29 225 DATE: February 26, 2025 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision from the Department of Veterans Affairs (VA). In June 2022, the Veteran testified before a Veterans Law Judge. A transcript of the hearing is of record. In correspondence from January 2025 the Board notified the Veteran that the VLJ who conducted his hearing was no longer available to participate in his appeal and informed the Veteran of his right to request another optional Board hearing. No response was received and, therefore, the Board will proceed with the Veteran's case. These issues were previously remanded by the Board in June 2024 after a March 2024 order from the United States Court of Appeals for Veterans Claims that granted a February 2024 joint motion for partial remand (JMPR). Unfortunately, substantial compliance with the prior remand was not achieved and an additional remand is warranted. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for left ear hearing loss is remanded. 2. Entitlement to service connection for right ear hearing loss is remanded. The March 2024 JMPR noted that the parties agreed that the May 2020 negative nexus opinion was based on an inaccurate factual premise that the Veteran served as a petroleum supply specialist which had a low probability of noise exposure. Parenthetically, the Board notes that the record does not include a May 2020 VA opinion and it appears that this refers to a May 2014 VA opinion. It was noted that a January 1979 service record indicated that the Veteran's actual duty assignment was in the unit's sheet metal shop and that remand was necessary for the Board to ensure a new VA opinion that considers the Veteran's actual duty assignment in a metal shop. Additionally, the February 2024 JMPR indicated that a new VA opinion must consider the Veteran's lay statements from the June 2022 Board hearing, which included statements that he started experiencing hearing loss while in service and that he failed a hearing loss test prior to his post-service work in a steel mill. The June 2024 Board remand directed that an addendum opinion be obtained and asked four specific questions for clarification. It also highlighted relevant evidence and included requests for consideration of the Veteran's duty assignment in a metal shop. The record includes four opinions signed August 14, 2024, by the same audiologist who provided these opinions based on review of the file. The "evidence comments" section for all of the reports includes "MOS petroleum supply specialist (low probability of noise exposure)." This is not an accurate reflection of the actual work the Veteran performed. None of the opinions address the Veteran's service in the sheet metal shop in the body of the opinions either. Furthermore, none of the questions posed in the June 2024 Board remand were answered in the August 2024 VA opinions. As such, remand is required to ensure compliance with the prior Board remand and to adequately address the concerns of the parties to the February 2024 JMPR. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a qualified clinician OTHER THAN THE EXAMINERS PREVIOUSLY OF RECORD. Another examination is not required; however, if the VA audiologist indicates that he or she cannot respond to the Board's questions without physical examination of the Veteran, another examination should be afforded to the Veteran. Ask the examiner to review the evidence and express fully explained opinions as to the following four questions: QUESTION ONE: Did the Veteran's right ear hearing loss manifest during service? Why or why not? QUESTION TWO: Did the Veteran's right ear hearing loss manifest within one year of service separation? Why or why not? QUESTION THREE: Was the Veteran's right ear hearing loss at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by noise exposure due to his duty assignment in a sheet metal shop? Why or why not? QUESTION FOUR: Did the Veteran's left ear hearing loss which existed prior to service, at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) increase in severity during service? Consider the Veteran's duty assignment in a sheet metal shop when providing a response. Why or why not? QUESTION FIVE: If the Veteran's pre-existing left ear hearing loss did increase in severity during service, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? When considering the Veteran's service in a sheet metal shop PLEASE CONSIDER THE VETERAN'S DESCRIPTION OF HIS WORK AT THE TIME OF THE JUNE 2022 BOARD HEARING, when he explained that, when he worked in a sheet metal shop he would have to go out to the flightline to repair the Chinook helicopters and most times when he would go out there some would be running and he would need to work on them, go back in to redo the part and go back out on the flightline and put it on. He indicated that when he would go back out with engines running, he was exposed to loud noises, and this was daily for about two years. THE EXAMINER IS ADVISED that s/he must consider the Veteran's statements at the time of the June 2022 Board hearing, which include statements that he started experiencing hearing loss while in service and that he failed a hearing loss test prior to his post-service work in a steel mill. Although s/he must review the electronic claims folder, the following review of the record may be helpful in forming the opinions: The Veteran served on active military duty from May 1977 to May 1980. His service treatment records include his April 1977 pre-entrance physical examination, which found no right ear hearing abnormalities, but noted left ear hearing loss for VA purposes: Hertz 500 1,000 2,000 3,000 4,000 Right ear 15 0 15 n/a 10 Left ear 15 15 15 n/a 45 February 1979 evaluation report noted that the Veteran's actual duty assignment was in a sheet metal shop. February 1980 statement of option where the Veteran declined to have a separation physical examination. The Veteran was discharged from active duty in May 1980. May 2011 VA treatment record noted the Veteran's report that he repaired and assembled train pistons as a post-service occupation. March 2014 VA treatment record where the Veteran reported that he worked in a "motor shop" for the past six years. May 2014 VA hearing loss examination showed a speech recognition score of 100 percent for the right ear, 94 percent for the left ear, and bilateral hearing loss for VA purposes: Hertz 500 1,000 2,000 3,000 4,000 Right ear 10 15 55 60 60 Left ear 10 15 65 70 75 May 2014 VA hearing loss examination where the Veteran reported post-service noise exposure due to employment in a steel plant for 6 months and paper mills for 26 years. In VA treatment records dated October 2015, November 2015, December 2015, May 2016, June 2016, June 2017, July 2017, August 2017, November 2017, and August 2019, a review of systems showed no hearing loss. June 2022 Board hearing where the Veteran claimed that he had trouble with hearing during service AND that he failed a post-service hearing test that was conducted before his employment at a steel plant in 1980. In VA treatment records dated November 2022, February 2023, December 2023, and February 2024, a review of systems showed no hearing loss. (Continued on the next page) ? 2. THE BOARD REQUESTS THAT THE AOJ REVIEW THE MEDICAL OPINION AND DETERMINE IF IT IS RESPONSIVE TO THE QUESTIONS ASKED IN THE ABOVE REMAND DIRECTIVE TO AVOID ANOTHER REMAND SHOULD THE MEDICAL OPINION BE NONRESPONSIVE. Prior to returning the case to the Board, the agency of original jurisdiction should ensure compliance with the Board's remand directives by confirming that the examiner's medical opinions are responsive to the questions asked above, to include the examiner addressing the evidence specifically listed in the remand directives. 3. Readjudicate the issues on appeal. L.M. YASUI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli 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.