Citation Nr: 1804989 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to August 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was previously before the Board in September 2015 and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claims so that every possible consideration is afforded. Hearing loss The April 2016 VA audiological examiner opined that it is less likely than not that the Veteran's hearing loss is related to his military service. Unfortunately, though, the examiner's opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (requiring that VA ensure the adequacy of an examination and opinion or, else, notify the Veteran why an adequate examination and opinion cannot be provided). Principally, the audiologist bases her negative opinion on the lack of hearing deficit during the Veteran's military separation auditory examination. In other words, she debunks any notion of "delayed-onset" hearing loss. Notably, however, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that 38 C.F.R. § 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). That said, these precedent cases presume there was some discernible shift in hearing threshold during service. The examiner's additional statements, while purporting to provide additional rationale for her opinion, seemingly are based on incorrect information. For example, she states that the Veteran's right ear hearing was normal through 4000 Hz on the December 1997 audiogram, and that his first ratable hearing loss was detected on the November 2004 audiogram. The December 1997 audiogram results, however, appear to show his right ear hearing threshold was 60 decibels at 4000 Hz. Moreover, the examiner listed the Veteran's various noise exposures including in-service and post-service exposures, but she did not explain if or why one or more of these exposures caused his hearing loss. Because of these failings, there has not been compliance with the Board's prior remand directives, not even what could be considered acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Because the opinion is inadequate, the claim must be again remanded to obtain a supplemental opinion. Tinnitus Because the logic supporting the audiologist's negative nexus opinion on hearing loss also underpins her negative opinion on tinnitus, this claim must also be remanded to obtain an adequate nexus opinion. TBI A review of the record shows that clinicians have associated the Veteran's headaches and visual symptoms with his established in-service head injury. The May 2016 VA TBI examiner provided a negative opinion based primarily on his determination that the Veteran's neuropsychological testing was invalid. Overall, the Board finds that there is insufficient evidence to decide the claim, and a remand is needed to afford the Veteran a new TBI examination with a different examiner so that this claim is decided based on valid neuropsychological testing results. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA or adequately identified private treatment records relating to the Veteran's TBI symptoms, hearing loss, and tinnitus. 2. The AOJ should arrange for an appropriate examination of the Veteran to determine the nature and cause of his claimed TBI symptoms. It is specifically requested that a different examiner conduct the evaluation. The entire record must be reviewed by the examiner in conjunction with the examination. In particular, the examiner should carefully review and consider the Veteran's statements and testimony describing his in-service head injury and related symptoms. The examiner should then respond to the following: (a) Does the Veteran have, or at any time during the appeal period has he had, a diagnosis of TBI or residuals thereof? Please identify (by diagnosis) each residual of TBI found/shown by the record. (b) Please identify the likely cause for each TBI/residuals disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disability began in (or is otherwise related to) the Veteran's service? If TBI/residuals shown are deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, if the same audiologist is available, obtain a supplemental opinion stating whether it is as least as likely as not that the Veteran's hearing loss and tinnitus is related or attributable to his military service from May 1987 to August 1989, or initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year, so by August 1990, to alternatively warrant presuming it was incurred during his service. The opinion must address: a) The likelihood that the Veteran's hearing loss and tinnitus is due to established in-service noise exposure on a delayed/latent onset theory of causation. The examiner is reminded that normal audiometric tests upon discharge are not automatically detrimental to a Veteran's claim. b) The December 1997 audiogram suggesting the Veteran had a right ear hearing deficit for VA disability purposes at 4000 decibels. If the same audiologist is not available, arrange to have another qualified audiologist or subject matter expert review the file and provide this necessary supplemental opinion responding to the directives above. If an adequate opinion responsive to these directives cannot be provided without another actual examination, the Veteran should be scheduled for this additional evaluation, but this is left to the designee's discretion. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Finally, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow them the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claims. 38 C.F.R. § 20.1100(b) (2017).