Citation Nr: A19001570 Decision Date: 09/25/19 Archive Date: 09/25/19 DOCKET NO. 190809-29180 DATE: September 25, 2019 REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to August 1961. He had additional periods of ACDUTRA (active duty for training) from July 9 to July 25, 1965, and June 24 to July 8, 1966. This appeal is being reviewed under the new Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), which was signed into law on August 23, 2017, by the President. This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to appeal the February 2019 rating decision that denied the claims to the Board of Veterans’ Appeals, and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Under the direct review option, no additional evidence received after the appealed rating decision is to be considered; rather, review is limited to the evidence on record at the time of the decision. The Board may not further develop the evidence except to the extent that it identifies an error in the duty to assist made prior to the issuance of the decision on appeal. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2601(g)). 1. The claim of entitlement to service connection for bilateral hearing loss is remanded. The Board has identified an error in the duty the assist. The January 2019 VA examiner opined that hearing loss was not related to service, based in part on a January 1966 hearing test being normal. However, his hearing test in January 1966 showed hearing loss for VA purposes in the left ear. In the 500 Hertz range, his recorded threshold was 45 decibels. Converting from ASA to ISO(ANSI) makes that 60 decibels. See 38 C.F.R.§ 3.385. The opinion is based on an incorrect factual premise, and is inadequate for adjudication. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The pre-decisional error is the failure to obtain an adequate medical opinion, and another opinion must be obtained. 38 C.F.R. § 3.159(c)(3). 2. The claim of entitlement to service connection for tinnitus is remanded. As above, the examiner’s opinion against service connection for tinnitus is based in part on the finding that the Veteran’s hearing was normal in January 1966, which is inaccurate. Another opinion must be obtained because the January 2019 VA examination is inadequate. Id. The Board also notes that the January 2019 VA examiner was not apparently provided with information on the dates of the Veteran’s service, as she noted that he did not serve on active duty, which is incorrect. The Veteran reported at the VA examination that his tinnitus started in 1964 or 1965 after summer camp. The record shows a period of ACDUTRA in 1965, but it is unclear whether he had any active service in 1964. The pre-decisional error is the failure to obtain relevant evidence about his service from the service department. On remand, an attempt to verify his periods of ACDUTRA shall be made. 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. Verify periods of ACDUTRA in 1964, as well as any other period prior to January 1966. 2. After completion of directive 1, forward the claims file to an appropriate examiner for an opinion on whether it is as likely as not (50/50 probability or greater) that hearing loss and/or tinnitus is related to his active duty or ACDUTRA service. The examiner is asked to review the record prior to opining. The record shows the Veteran served on active duty from February 1961 to August 1961, and on ACDUTRA from July 9 to July 25, 1965, and June 24 to July 8, 1966. He asserts his hearing loss is related to exposure to field artillery and howitzer cannons. He was exposed to traumatic noise in his civilian occupation, but reported he was given hearing protection. A January 1966 hearing test (conducted in ASA units, which must be converted to ISO(ANSI) units) shows the Veteran had a 45-decibel loss (converted to ISO(ANSI) units, that is 60 decibels) in the left ear at that time in the 500 Hertz range, which meets the criteria for a hearing loss disability for VA purposes. He reports his tinnitus started in 1964 or 1965 after summer camp. His STRs do not show any complaints but that is not dispositive of the question.   The examiner is asked to consider his statements regarding the onset of symptoms, and to provide a complete explanation for all rendered opinions. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.