Citation Nr: 18154691 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 12-09 383 DATE: November 30, 2018 REMANDED Entitlement to service connection for bilateral hearing loss including as secondary to tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1966 to May 1968. The Department of Veterans Affairs (VA) is grateful for his service. Entitlement to service connection for bilateral hearing loss, including as secondary to tinnitus, is remanded. By a September 2017 decision, the Board denied service connection for bilateral hearing loss, including based on the theory raised of service connection as secondary to service-connected tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Court by an April 2018 Order approved the parties’ Joint Motion for Remand (Joint Motion 2), vacating the Board’s decision and remanding for action consistent with Joint Motion 2. This was not the Board’s first denial of the claim. Rather, in October 2015, the Board denied the claim, the Veteran appealed the decision, and that decision was vacated and that matter was then also subject of a Joint Motion for Remand (Joint Motion 1) approved by a December 2016 Court Order. Pursuant to Joint Motion 1, in April 2017, the Board remanded the claim for addendum opinions from the January 2015 VA examiner. In September 2017, the Board then denied the claim including based on the obtained addendum opinions and clarifications as directed by Joint Motion 1. In the Joint Motion 2, the parties found the VA examination and addenda to be still inadequate, and directed the Board to obtain either an additional addendum or a new examination. Specifically, in Joint Motion 2, the parties noted that the examiner failed to address the change in pure tone thresholds at 500 decibels between service entrance and service separation examinations. Joint Motion 2 reflected difficulty understanding, or otherwise found inadequate, the examiner’s explanation as to why tinnitus had not caused or aggravated the Veteran’s bilateral hearing loss. Thus, the Board is remanding the claim to request that the January 2015 examiner again provide an addendum. The matter is REMANDED for the following actions: 1. Associate any outstanding, pertinent records. All efforts to obtain additional evidence must be documented in the claims file. 2. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the claim. Provide them with appropriate opportunity to reply. 3. Then, return the case to the VA examiner who conducted the January 2015 VA examination addressing the Veteran’s claimed bilateral hearing loss. Inform the examiner that an additional Joint Motion for Remand has regrettably found his prior addendum to still be deficient for purposes of the Board’s adjudication of the claim. Invite the examiner to review the current Joint Motion for Remand as approved by an April 2018 Order of the U.S. Court of Appeals for Veterans Claims, but otherwise request that he do the following: (a.) Provide a new opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss developed in service, was present to a disabling degree within the first post-service year, or was otherwise causally related to service. For purposes of this opinion, the examiner must provide a rationale which specifically addresses the change in decibel threshold readings at 500 Hertz between the service entrance examination and service separation examination. The examiner should address how this does or does not support the Veteran’s contention that the service separation hearing loss examination was invalid because he did not provide accurate responses to reflect his then hearing loss, so that he could get out of service. (b.) Provide a new opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss was caused or aggravated by his service-connected tinnitus. For this opinion the examiner must provide a clearer explanation for the apparent discrepancy between the April 2009 examination opinion that the Veteran’s tinnitus was related to his hearing loss, and the January 2015 examination opinion that the Veteran’s tinnitus was related to service but his hearing loss was not. If the January 2015 examiner cannot provide these addendum opinions and requested rationales, then a new examination should be obtained with opinions addressing the Veteran’s claim on direct and secondary bases, with rationales addressing the same issues as detailed above. 4. After completing these actions, the Agency of Original Jurisdiction (AOJ) should conduct any other development as may be indicated by a response received as a consequence of the actions taken pursuant to the Board’s instructions, above. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sough is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter