Citation Nr: 1751130 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-33 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Saint Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969, to include service in Korea. This matter comes to the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) regional office (RO). In June 2015, the Board denied the issues on appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court issued a memorandum decision that vacated the Board's decision and remanded the issues for reajudication. This matter was returned to the Board in May 2017, where the issues were remanded to afford the Veteran a new VA audiological examination and opinion. The matter has again been returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets additional delay, another remand is necessary to obtain a VA examiner's addendum opinion. In an October 2016 memorandum decision, the Court determined that the Board provided an inadequate statement of its reasons or bases for why a November 2013 VA addendum opinion was not returned for clarification in a June 2015 decision denying the Veterans claims. The Court noted that in the November 2013 addendum to a January 2012 VA examination report, the examiner ignored the portion of a medical treatise submitted by the Veteran titled Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine (National Academies Press 2006) ("IOM report"), that found "an individual's awareness of the effect of noise on hearing may be delayed considerably after the noise exposure." The Court indicated that this portion seemed to support the Veteran's theory of entitlement to service connection for bilateral hearing loss, and vacated and remanded the Boards June 2015 decision. In May 2017, and pursuant to the Court's remand, the Board instructed the AOJ to provide the Veteran with a new VA examination and opinion as to the etiology of his bilateral hearing loss and tinnitus. The Board explicitly instructed that the VA examiner must consider "the fact that the Veteran's awareness of the effect of noise on hearing may be delayed considerably after the noise exposure." The examination and opinion were provided in July 2017. However, rather than address both the IOM report and the Veteran's contentions that he experienced hearing loss shortly after service, the examiner simply supplied a negative etiological opinion based on the Veteran's lack of hearing loss upon examination at separation from service in June 1979 compared to his examination upon entry two years prior. In addition, and to that point, the Veteran offered an additional argument that was not addressed by the examiner as it was not noted in the Board's previous remand: the adequacy of the 1979 audiological examination. In support of his appeal to the Court, the Veteran noted in an appellate brief that the IOM report also suggests that audiometric data collected after the 1970s is more reliable and consistent than earlier data. Specifically, the report states that "[a] primary indicator of the presence of noise-induced hearing loss is the pattern of hearing loss in the high frequencies, referred to as the 'noise notch,' in which hearing thresholds at 3000, 4000, or 6000Hz are worse than those at lower frequencies or at 8000Hz." The report notes that the notch typically occurs at 6000Hz, when threshold measurements include 8000Hz. As the in-service audiological examinations did not include measurements at 8000Hz, it is the Veterans' contention that an opinion comparing his entrance and separation examinations in service would be inadequate, since the in-service tests themselves would be inadequate. Thus, it can therefore not be shown that his hearing was normal at separation despite his observations to the contrary. In light of the above deficiencies in the July 2017 examiner's opinion, another remand is necessary to obtain the requisite addendum opinion regarding the etiology of the Veteran's bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268 (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). With respect to the Veteran's claim for service connection for tinnitus, the Board finds that this claim is inextricably intertwined with his pending service connection claim for bilateral hearing loss. Specifically, in the July 2017 VA examination report, the examiner opined that the Veteran's tinnitus is "correlated to his hearing loss." Because a decision regarding the Veteran's claim of service connection for bilateral hearing loss affects the claim of service connection for tinnitus, the claims are inextricably intertwined such that the claim for service connection for tinnitus cannot be reviewed while the pending claim for service connection for bilateral hearing loss remains unresolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, the Board acknowledges the Veteran's lay assertions that his hearing loss and tinnitus have been ongoing since service. However, the Veteran's claims file is absent any VA or private medical treatment records that might assist in substantiating his claims. The Board encourages the Veteran to submit any available treatment records for his claims. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After the above actions have been completed to the extent possible, obtain an addendum opinion as to the etiology of the Veteran's hearing loss and tinnitus. If the examiner determines that an additional examination is necessary before rendering an opinion, such should be scheduled. A complete copy of the claims file should be provided to the examiner. Upon review of the claims file and, if necessary, examination of the Veteran, the examiner is asked to address the following: a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current hearing loss disability that had its onset during military service or is otherwise causally or etiologically related to his military service. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has tinnitus that had its onset during military service or is otherwise causally or etiologically related to his military service or caused or aggravated by his hearing loss. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. In offering the opinions, the examiner should address the Veteran's submitted medical article titled Noise and Military Service: Implications for Hearing Loss and Tinnitus and his associated arguments that i) an individual's awareness of the effect of noise on hearing may be delayed considerably after the noise exposure, and ii) the possibility that his in-service audiological examinations were an inadequate measure of hearing loss. The examiner should also consider the Veteran's lay statements regarding experiencing hearing loss and tinnitus since service. A clear rationale for the opinions must be provided. If the examiner cannot provide any of the above opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).