Citation Nr: 18153319 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-50 343 DATE: November 27, 2018 REMANDED 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to December 1970, with additional reserve service. 1 and 2. Entitlement to service connection for 1) a bilateral hearing loss disability and 2) tinnitus are remanded. The Veteran was afforded a VA examination for hearing loss and tinnitus in July 2014. However, the examiner indicated that while the Veteran was pleasant in demeaner, the test results were inconsistent and do not appear to reflect the Veteran’s maximal effort. The examiner explained that the Veteran was reinstructed and encouraged throughout testing with no improvement in his admitted responses. Further, she stated that there was poor intertest reliability and test results were considered invalid and unreliable and thus not reported. The Board notes that the duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C. § 5107(a). In a July 2015 notice of disagreement, the Veteran’s representative asserted that the Regional Office (RO) failed to reschedule the Veteran for an adequate examination. The representative stated that the RO denied the Veteran’s claim based on the examination and a lack of current disabling hearing loss and no audiometric findings in service treatment records. She contends, “The examiner could not register a clear reading of the hearing loss, but at no time did she offer the opinion that no disabling hearing loss was present.” Since the VA examination, the Veteran has proffered a private audiologic report and medical opinion from December 2015 which reflects a diagnosis of moderate to severe high frequency sensorineural hearing loss bilaterally. The private audiologist opined that the Veteran’s hearing loss and/or tinnitus is at least as likely as not caused by or a result of his military noise exposure in both ears. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board finds that a VA examination is necessary to confirm a current diagnosis of bilateral hearing loss for VA purposes, and to determine the nature, extent and etiology of the claimed hearing loss and tinnitus disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination for his claimed 1) bilateral hearing loss disability and 2) tinnitus to determine the nature, extent and etiology of the claimed disabilities. The Veteran is notified that absent a showing of good cause, refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination for purposes of VA regulations under 38 C.F.R. § 3.655(b) (2017). Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from January 1969 to December 1970. • In a December 1970 Report of Medical Examination performed at the time the Veteran was separating from active duty, the Veteran’s hearing was tested using whispered voice and spoken voice, and both were reported to be 15/15. See VBMS entry with document type, “STR – Medical,” receipt date 07/20/2013, on pages 12-13 (hearing test is on page 13). • In a March 1973 Report of Medical Examination (which is a little over two years following active duty service discharge), the Veteran’s hearing was tested using whispered voice and spoken voice, and both were reported to be 15/15. See VBMS entry with document type, “STR – Medical,” receipt date 07/20/2013, on pages 6-7 (hearing test is on page 7). • In an April 1973 Report of Medical History, the Veteran denied a history of hearing loss. See VBMS entry with document type, “STR – Medical,” receipt date 07/20/2013, on page 8 (item # 11, first column). • In a February 1997 Report of Medical Examination (which is more than 25 years following active duty service discharge), it was noted that an audiology work-up completed at a private facility showed asymmetrical hearing loss. The examiner wrote, “There is no evidence of any serious[] illness causing the hearing loss. Probable cause is loud exposure to shooting.” See VBMS entry with document type, “STR – Medical,” receipt date 02/18/2013, with #1 in the subject line, on page 18. The Veteran was not on active duty in 1997. • While the above examination is dated February 1997, the hearing test was done in June 1997. STR – Medical,” receipt date 02/18/2013, with #1 in the subject line, on page 19. The following page (page 20) shows a hearing chart for the left and right ears. The Veteran was not on active duty in 1997. • In a February 1997 Report of Medical History, the Veteran denied a history of hearing loss. See VBMS entry with document type, “STR – Medical,” receipt date 02/18/2013, with #1 in the subject line, on page 14. • A September 2013 VA treatment record shows that the Veteran reported hearing loss, but stated it was in the left ear. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 07/16/2015, on page 4. • A November 2014 VA treatment record shows that the Veteran was at VA to establish care. He reported to the examiner that he first noticed hearing loss about two years ago. The examiner wrote, “probably present longer.” The Veteran reported not having ear protection while in service and believed his hearing loss was related to daily helicopter noise during landings and when evacuating wounded soldiers. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 07/16/2015, on page 2. • Of record is an affidavit from the Veteran with his contentions regarding military noise exposure and his claimed hearing loss disability and tinnitus. The Veteran also included photographs referenced in his affidavit. See 1) VBMS entry with document type, “Affidavit,” receipt date 10/07/2016; and 2) VBMS entry with document type, “Correspondence,” receipt date 10/12/2016. • A December 2015 private audiologic report and medical opinion, reflects a diagnosis of moderate to severe high frequency sensorineural hearing loss bilaterally. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 05/07/2018. • Of record is the July 2014 record from the VA examiner regarding the poor intertest reliability of the audiological examination results, which she considered invalid and unreliable and thus were not reported. See VBMS entry with document type, “C&P Exam,” receipt date 07/14/2014. While the Board has provided some of the relevant facts above, the examiner is not limited to reviewing these facts. The examiner is asked the following questions: a) Whether the Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes? If so, is it at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? Please address the December 2015 private audiologic report and medical opinion. Please provide an opinion regardless of whether or not the Veteran fully participates during the audiological examination. b) Is the Veteran’s claimed tinnitus at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel