Citation Nr: 18157562 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-62 464 DATE: December 13, 2018 ORDER Service connection for tinnitus is granted. Service connection for right ear hearing loss is granted. REMANDED Service connection for a back disability is remanded. Service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran has diagnosed tinnitus. He provided competent and credible written statements describing significant noise exposure during his Air Force service as a fuel specialist working on the flight line. An April 2010 VA treatment record notes the Veteran’s significant in-service noise exposure, intermittent ringing in his ears, and diagnosed tinnitus. The December 2015 VA audiological examiner also diagnosed tinnitus but concluded that tinnitus was not related to service primarily because the Veteran reported his tinnitus started six months earlier. However, in June 2016 and December 2016 written statements, the Veteran contested the examiner’s report of his tinnitus onset; he reported first noticing ringing in the ears in 1973 when trying to sleep. Because the Veteran, as a lay person, is competent to report tinnitus and because the April 2010 VA treatment report at the very least indicates that the VA examiner’s review of file was incomplete, the Board resolves reasonable doubt in the Veteran’s favor and finds that the evidence is at least equipoise that the Veteran’s current tinnitus began during active service. 2. The December 2015 VA audiological examination report establishes that the Veteran has a current right ear hearing loss disability (as defined by VA regulations). The Veteran’s August 1972 entrance examination report shows normal right ear hearing. The Veteran’s November 1975 separation examination report shows “mild right ear hearing loss.” The separation audiogram shows a threshold shift at 6000 Hz (from 15 dB at entrance to 40 dB on separation). Although testing at 6000 Hz is not considered for rating purposes or establishing the level of hearing loss required by VA regulations, the Board finds that this difference reasonably indicates that there was some change in hearing during service. The Veteran’s STRs also include three additional audiograms from the months before the Veteran’s separation indicating additional concern for his right hear hearing. The Veteran provided competent and credible statements describing noise exposure during active service in the Air Force on the flight line. There is no evidence of post-service recreational or occupational noise exposure. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence (specifically including the Veteran’s normal right ear hearing on entry, in-service noise exposure, and the separation examination noting mild right ear loss and a change in his hearing on audiogram testing), is at least in equipoise as to a finding that the Veteran’s right ear hearing loss is related to his service. [The VA audiological examiner’s negative nexus opinion was closely reviewed. However, the Board notes that the examiner may not have fully considered that the Veteran’s separation audiogram showed a change in hearing from entrance to separation and that the repeated audiograms at separation indicates clear concern by the Air Force regarding the Veteran’s hearing. Overall, the report indicates that the audiologist may have applied an incorrect standard—whether the Veteran developed right ear hearing loss to the level of a VA disability during service—rather than whether the Veteran had some change in hearing indicating acoustic trauma and a possible relation to current hearing loss.]. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a); see Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding tinnitus is an “organic disease of the nervous system” subject to presumptive service connection “at a minimum where there is evidence of acoustic trauma”). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to July 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision. Service connection for left and right knee disabilities, formerly associated with this appeal steam, was not appealed by the Veteran with a VA Form 9 (substantive appeal) and accordingly will not be addressed further here. 1. Service connection for tinnitus 2. Service connection for right ear hearing loss For the reasons outlined above, service connection for these two claims is granted. REASONS FOR REMAND 1. Service connection for a back disability is remanded. 2. Service connection for left ear hearing loss is remanded. A remand is required because the VA examinations of record are not adequate to fairly decide these claims. The matters are REMANDED for the following action: 1. Obtain all updated records of VA treatment (from July 2016 to present). 2. Send the Veteran a letter asking him to identify all treatment providers for the issues on appeal, and to authorize VA to obtain available records for association with the claims file. In the letter, please inform the Veteran that evidence showing treatment for back conditions prior to 2001 (the earliest VA treatment records) and as close to his separation from active service as possible would be particularly helpful for VA. 3. Schedule the Veteran for a VA audiological examination with a different examiner than the December 2015 examiner to assess the nature and cause of the Veteran’s left ear hearing loss. The Board recognizes that responding to the detailed medical questions will require significant work on the part of the medical examiner. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. A new examination is necessary because the December 2015 examination report did not provide a sufficiently detailed explanation for the examiner’s negative conclusion, especially considering the Veteran’s established noise exposure and current left ear hearing loss. Here, some degree of pre-service left ear hearing impairment is considered as noted on the Veteran’s August 1972 entrance examination report due to the abnormal audiogram results. Therefore, there is no presumption of soundness as to at least some type of left ear hearing loss and the question before VA is whether this type of left ear hearing loss was aggravated by the Veteran’s service. HOWEVER, the Board also notes that the Veteran has been diagnosed with “mixed hearing loss,” implying that the Veteran could have one type of hearing loss that pre-existed service (and was or was not aggravated by service) AND another type that was incurred in or is otherwise related to service, to include established noise exposure. For this reason, the examiner should provide detailed answers to all the questions below to afford the Veteran every possible consideration. EXAMINATION INSTRUCTIONS The examiner should elicit from the Veteran a detailed history regarding the onset, progression, frequency, and severity of relevant symptoms. Any associated functional impairment should be described in detail. The Veteran’s entire record must be reviewed by the examiner, and all indicated tests and studies must be completed. Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following: a) Identify by specific diagnosis all types of left ear hearing loss present. b) Is it as least as likely as not (a 50 percent or greater probability) that the Veteran’s pre-existing left ear hearing loss was aggravated by service, to include established acoustic trauma? Aggravation in this context means any worsening beyond normal progression. c) Is it as least as likely as not that ANY type of diagnosed left ear hearing loss was incurred in or is otherwise related to the Veteran’s active service, to include established noise exposure? When providing this opinion, the examining audiologist MUST discuss in detail and consider the Veteran’s in-service noise exposure and the Veteran’s pre- and post-service left ear clinical history, to specifically include a discussion of the April 2010 VA ENT treatment record. A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.). 4. Schedule an examination to determine the nature and cause of the Veteran’s back disabilities with a different examiner than the January 2016 examiner. The Board recognizes that responding to the detailed medical questions will require significant work on the part of the medical examiner. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. A remand is necessary because the previous examiner did not provide a sufficiently detailed explanation for the negative nexus opinion. In addition, the examiner did not have the opportunity to review the treatise evidence submitted by the Veteran indicating that some forms of scoliosis may be acquired. In this case, scoliosis was not noted on the Veteran’s entrance examination; it was first shown on an October 1974 x-ray report. The January 2016 VA examiner concluded that the absence of serial x-rays and specific physical examination results from the Veteran’s service means that the question of whether the Veteran’s scoliosis was clearly and unmistakable aggravated by service cannot be answered without resorting to speculation. The Board finds that this statement is not adequate to show by clear and unmistakable evidence that the Veteran’s scoliosis was not aggravated by service. The Veterans Court has held that VA may only rely upon a medical examiner’s conclusion that a causation opinion would be speculative if the examiner explained the basis for such an opinion or the basis is otherwise apparent in VA’s review of the evidence. The Court held that VA, to fulfill its duty to assist, is not required to perform repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile; however, it must be clear from the examiner’s opinion and/or VA’s analysis of the record that the examiner has not used the phrase “without resort to mere speculation” as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled. If review of the record leaves this issue in doubt, it is the duty of the Board to remand the claim for further development. The Court further held that the examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. The examiner should also precisely identify what facts cannot be determined if unable to give an etiology opinion without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). EXAMINATION INSTRUCTIONS Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following: a) Identify by diagnosis any current back disabilities, including but not limited to, lumbar scoliosis, spondylosis, and degenerative joint disease. b) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that any of the Veteran’s back disabilities pre-existed service entrance? Please use this specific language in your answer; and c) If so, is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the Veteran’s pre-existing back disability or disabilities WAS NOT aggravated during service (i.e., did not undergo an increase in disability during service beyond the natural progress of the disability.) Please use this specific language in your answer. d) If it is determined that ANY of the Veteran’s back disabilities (including but not limited to scoliosis, spondylosis, and degenerative joint disease) did not pre-exist service entrance, is it at least as likely as not (i.e., 50 percent or greater probability) that such back disability was incurred in service, within one year of separation for arthritis (by July 1977), or is otherwise related to service. The examiner MUST address the following: 1. The treatise evidence submitted by the Veteran in December 2016 discussing functional scoliosis and the Veteran’s related assertion that he developed functional scoliosis during service. 2. The October 1974 STR showing the Veteran was evaluated for right lower quadrant abdominal pain and whether this could be a manifestation of any of the Veteran’s diagnosed back disabilities. 3. The Veteran’s report that he did a lot of heavy lifting during active service and that he was treated with pain medication for several back strains associated with this lifting and whether any currently diagnosed back disability could be related to his lifting and strains. A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel