Citation Nr: 20072884 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 16-40 480 DATE: November 12, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1969 to August 1971. These matters come before the Board the Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Procedural History In March 2016, the RO issued a rating decision denying service connection for bilateral hearing loss and entitlement to TDIU. The Veteran appealed the decision to the Board, and in November 2018, the Board denied the claims. The Veteran filed a timely appeal of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a joint motion for partial remand (JMPR), which found that the Board erred in denying the claims on appeal because the Board’s decision failed to provide an adequate reasons and bases for the determination. Specifically, the Board based the decision regarding bilateral hearing loss on a VA medical opinion that failed to consider the in-service threshold shift evidenced between the Veteran’s entrance examination and separation examination. The Board’s decision on TDIU failed to consider all of the Veteran’s service-connected disabilities and only based the decision on the Veteran’s service-connected PTSD. 1. Hearing Loss The Veteran asserts that he experiences bilateral hearing loss as a result of hazardous noise exposure during his active service. Unfortunately, due to the reasons that follow, a remand is required as the December 2015 VA examination is found to be inadequate. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. The Veteran underwent his most recent VA examination for hearing loss in December 2015. The Board finds the opinion to be inadequate. Specifically, the examiner stated that his hearing was within normal limits at his pre-induction examination to service and his separation examination from service. The examiner continued to state that the Veteran did not sustain any significant threshold shift. See December 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The Board finds that there was a threshold shift between the Veteran’s pre-induction examination and separation examination. Specifically, the Veteran’s hearing at 500 hertz went from zero decibels from pre-induction to 15 decibels at separation examination in his left ear. The Veteran’s right ear had a 5 decibel increase at 500 hertz and 1,000 hertz. See November 1968 STR Report of Medical Examination; April 1971 STR Report of Medical Examination. The Board notes that the Veteran’s separation examination was completed about four months prior to his discharge. Given such, upon remand the examiner should address whether there were any shifts in acuity. Hensley v. Brown, 5 Vet. App. 155 (1993). In Hensley v. Brown, the United States Court of Appeals for Veterans Claims held that an examiner should consider and directly address any shifts of acuity thresholds found in the service treatment records even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. 2. TDIU With respect to the Veteran’s claim for TDIU, the Board finds that it is inextricably intertwined with his bilateral hearing loss claim. As such, those findings are incorporated herein, and remanded until the bilateral hearing loss claim has been addressed. Harris v. Derwinski, 1 Vet. App. 180 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if a matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or adjudication will generally be deferred for further adjudication, as appropriate). The matters are REMANDED for the following action: 1. The RO should obtain a medical opinion from a qualified VA examiner. The Veteran’s claims file, including a copy of this Remand, must be provided to the examiner for review. If the examiner finds a new VA examination is necessary, then one must be completed prior to completing the medical opinion and prior to the RO’s disposition of the claim. After reviewing the entire record, the examiner is specifically instructed to provide the following information: (a.) Whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s bilateral hearing loss is related to acoustic trauma during active service? i. The examiner should comment on the threshold shift from the November 1968 entrance examination and April 1971 discharge examination. ii. The examiner must note that the April 1971 discharge examination was completed four months prior to the Veteran’s actual discharge from service. Therefore, the Board instructs the examiner to comment on whether a larger threshold shift could have occurred prior to his discharge in August 1971. A complete rationale must be provided for the opinion expressed. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) including the Veteran’s lay assertions should be considered in giving this opinion, with page references to the evidence used in the decision. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page) IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, Associate Counsel 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.