Citation Nr: 18153718 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-56 760 DATE: November 28, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of tonsillectomy is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The November 2015 rating decision also denied a claim of entitlement to service connection for improper dental work. The RO addressed this claim in its August 2016 statement of the case (SOC). The Veteran filed a substantive appeal in November 2016; however, he specifically referenced only the issues of service connection for hearing loss, tinnitus, and residuals of tonsillectomy; he did not refer to the dental work issue. Therefore, an appeal as to the claim of entitlement to service connection for improper dental work has not been perfected. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.202 (2017) (if the SOC addressed multiple issues, the substantive appeal must either indicate that all issues are being appealed or it must specifically identify the issues being appealed). Accordingly, the issue of entitlement to service connection for improper dental work is not in appellate status and will be addressed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant’s filing of a substantive appeal after a SOC is issued by VA). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he developed bilateral hearing loss due to his military service. See the Veteran’s claim dated June 2015. He was afforded a VA audiological examination in November 2015, at which time the examiner confirmed a diagnosis of bilateral hearing loss sufficient for VA compensation purposes. The examiner determined that the Veteran’s bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner stated, “Veteran’s hearing was within normal limits on entrance to service. No hearing test was done at discharge. STRs are silent for any complaint of hearing loss or tinnitus.” The examiner further opined, “Veteran’s MOS (military occupational specialty) as cook has a low probability of noise exposure and Veteran never served in combat.” Critically, the November 2015 VA examiner’s opinion is of diminished probative value because the lack of evidence of treatment for the claimed disorder in the Veteran’s service treatment records (STRs) cannot, standing alone, serve as the basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). VA regulations do not preclude service connection for a hearing loss, which first met VA’s definition of disability after service. See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). Moreover, the Veteran has subsequently described noise exposure while driving trucks as well as during training exercises while on active duty service. See, e.g., the Veteran’s statement dated November 2016. Thus, given the inadequacies of the November 2015 VA examiner’s opinion as well as the Veteran’s more recent contentions of in-service noise exposure, remand for a new opinion as to the etiology of the diagnosed bilateral hearing loss is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for residuals of tonsillectomy is remanded. The Veteran asserts entitlement to service connection for dry throat and difficulty swallowing, which he claims are residuals of a tonsillectomy performed during his military service. See, e.g., the Veteran’s claim dated June 2015. The Veteran was afforded in November 2015 at which time the examiner diagnosed him with dry throat and reported that the Veteran’s swallowing appeared normal. However, the Veteran has subsequently asserted that he suffers from dysphagia as due to his October 1969 tonsillectomy. See, e.g., the VA Form 9 dated November 2016 and the Veteran’s statement dated October 2016. As such, the Board finds that the Veteran should be afforded a new VA examination to determine whether he suffers from difficulty swallowing, which is due to his in-service tonsillectomy. Additionally, the Board notes that, in an October 2016 statement, the Veteran asserted that he has been diagnosed with dysphagia by private treatment provider, Dr. W. As these private treatment records are pertinent to the pending appeal, upon remand, the RO should attempt to obtain these outstanding records and associate the records with the Veteran’s claims file. 3. Entitlement to service connection for tinnitus. In the November 2015 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for tinnitus. In a September 2016 statement, the Veteran expressed disagreement with the denial of service connection for tinnitus and requested review by a decision review officer (DRO). As, the AOJ has not issued an SOC as to this claim, and a remand is therefore warranted for issuance of an SOC as to the issue of entitlement to service connection for tinnitus. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA and private evaluation and/or treatment of the Veteran including the treatment records from Dr. W, referenced in the Veteran’s October 2016 statement. All records/responses received should be associated with the claims file. 2. Arrange to obtain from an appropriate VA audiologist an addendum opinion addressing the etiology of diagnosed bilateral hearing loss, based on claims file review, if possible. If an examination is deemed necessary in the judgment of the audiologist designated to provide the addendum opinion, one should be arranged. The claims file must be made available to the examiner for review in connection with the examination. With respect to the diagnosed bilateral hearing loss, the examiner should render an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease, including the claimed in-service noise exposure. In addressing the above, the examiner must consider and discuss all pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. In this regard, the examiner should note that the absence of evidence of treatment for bilateral hearing loss in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current throat disability. Access to the Veteran’s claims file should be made available to the examiner for review in connection with the examination. The examiner should identify all disabilities of the Veteran’s throat, including dry throat and dysphagia. The examiner should then provide an opinion as to whether it is at least as likely as not that any current throat disability was incurred in the Veteran’s active duty service, to include as due to his October 1969 tonsillectomy. In addressing the above, the examiner must consider and discuss all pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. (Continued on the next page)   4. Separately, issue an SOC addressing the Veteran’s entitlement to service connection for tinnitus. In connection therewith, the Veteran and his attorney should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran perfects an appeal should that matter be returned to the Board. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel