Citation Nr: 18155416 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-23 144 DATE: December 4, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral tinnitus is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from June 1969 to June 1971, including combat service in Vietnam, for which he was awarded the the Combat Infantry Badge, and the Bronze Star and the Army Commendation Medal with “V” device among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The hearing request initially made by the Veteran in his July 2015 Form 9 was effectively withdrawn by the Veteran when he failed to appear for the scheduled hearing and telephonically withdrew his hearing request. See 38 C.F.R. § 20.704(d). The Board notes that, in addition to seeking service connection for the issues remanded herein, the Veteran’s January 2014 Notice of Disagreement (NOD) also requested that his 50 percent disability rating for his service-connected post-traumatic stress disorder (PTSD) be increased to 70 percent. The Veteran’s NOD expressly stated that “70 percent is warranted for PTSD because the symptoms associate more closely with 70 percent.” A subsequent May 2018 rating decision granted the Veteran’s request and awarded the Veteran an increased PTSD rating of 70 percent from January 29, 2013. The VA notice letter sent to the Veteran on June 12, 2018 explained that the May 2018 rating decision represented all claims understood by VA to be specifically made, implied, or inferred in the Veteran’s claim. The rating decision also informed the Veteran that “this action is a full grant of the benefit sought on appeal-evaluation at 70%.” The Board acknowledges that the Veteran may elect to limit his appeal to seek a benefit less than the maximum allowed by VA regulations. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). In this case, because the Veteran’s NOD clearly and unambiguously limited his PTSD appeal to the award of a 70 percent rating, the Board finds that the Veteran has been awarded the maximum benefit sought for his service-connected PTSD, and, therefore, the May 2018 rating decision constitutes a full grant of the Veteran’s appeal for a disability rating in excess of 50 percent for his service-connected PTSD. Accordingly, the issue of entitlement to an increased rating for the Veteran’s service-connected PTSD is no longer in appellate status before the Board. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for bilateral tinnitus is remanded. Unfortunately, the Veteran’s service connection claims for bilateral hearing loss and tinnitus must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his current bilateral hearing loss and tinnitus were caused by his in-service exposure to hazardous noise levels emitted by military aircraft, explosions, and weapons fire during his combat service in Vietnam. The Veteran underwent a VA examination in September 2013 which diagnosed the Veteran with bilateral sensorineural hearing loss for VA purposes. However, the VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of his military noise exposure because the Veteran’s separation exam dated May 1971 revealed normal hearing in both ears with no significant changes from his hearing exam at induction. The VA examination noted the Veteran reported intermittent “rushing” and “humming” tinnitus bilaterally, which he first noticed in 2011. The VA examiner opined that the Veteran’s bilateral tinnitus was less likely than not caused by or a result of his military service because the Veteran’s separation exam dated May 1971 revealed normal hearing in both ears with no significant changes from his hearing exam at induction. In addition, the VA examiner incorrectly characterized the record as containing no evidence that the Veteran suffered exposure to military acoustic trauma during his combat service in Vietnam, in direct contravention of the Veteran’s lay statements recorded elsewhere in the VA examiner’s report. It is well-established that VA regulations do not preclude service connection for a current hearing disability where there is sufficient evidence to demonstrate a relationship between the Veteran’s military service and his current hearing disability, even if audiometric testing conducted at separation from service reflects hearing within normal limits. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Moreover, VA regulations further provide that service connection may be granted for any disease diagnosed after discharge where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In this case, the September 2013 VA opinion finding no causal link between the Veteran’s current bilateral hearing loss and his combat service in Vietnam, solely on the grounds that audiometric testing at separation from service reflected hearing within normal limits, directly contradicts applicable VA regulations and precedential case law which allow service connection if the record contains sufficient evidence to demonstrate a relationship between the Veteran’s military service and his current disability. See id. Moreover, the September 2013 VA opinion also failed to address any other factors relevant to service connection other than the Veteran’s normal hearing exam upon separation, and also failed to discuss the Veteran’s contentions of in-service noise exposure or to explain why such noise exposure was less likely than not to have caused his current bilateral hearing loss. Accordingly, for the foregoing reasons, as the September 2013 VA examination does not address whether the Veteran’s current bilateral hearing loss is related to his report of in-service noise exposure, another VA examination is necessary to determine whether the Veteran’s bilateral hearing loss is related to his active military service and thus entitled to service connection on any basis. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After obtaining all necessary records, obtain an addendum opinion from an examiner different from the September 2013 examination, which addresses the likelihood of a relationship between the Veteran’s bilateral hearing loss and tinnitus and his active military service. No examination needs to be conducted, unless the examiner deems it necessary. The entire claims folder should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all findings should be reported in detail. The examiner must review the Veteran’s claims file and explain the complete rationale for all opinions expressed and conclusions reached. The examiner is requested to provide an opinion as to the following: (a) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hearing loss is due to or otherwise causally or etiologically related to his active military service. The examiner must discuss the Veteran’s report of noise exposure from military aircraft, explosions, and weapons fire during his combat service in Vietnam. (b) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hearing loss manifested to a compensable degree within one year of separation from service. (c) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hearing loss is due to or otherwise causally or etiologically related to his active military service. The examiner must discuss the Veteran’s report of noise exposure from military aircraft, explosions, and weapons fire during his combat service in Vietnam. (d) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral tinnitus manifested to a compensable degree within one year of separation from service. The Veteran was exposed to military acoustic trauma during his combat service in Vietnam and the examiner must comment on the Veteran’s lay statements regarding such exposure and any impact on his current bilateral hearing loss and tinnitus. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel