Citation Nr: 20022066 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-41 005 DATE: March 30, 2020 REMANDED 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to September 1977. In October 2018, the Veteran provided testimony at a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In March 2019, the Board issued a decision that denied the Veteran’s claim of entitlement to service connection for 1) a bilateral hearing loss disability and 2) tinnitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) with respect to the March 2019 Board decision, to vacate and remand the claims back to the Board, which was granted by the Court. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. The parties to the October 2019 JMR found that the Board erred by failing to ensure VA satisfied its duty to assist to provide an adequate examination or medical opinion. 38 U.S.C. § 5103A(d)(1)(2018); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the Board erred when it relied on the June 2015 VA medical opinion authored by an audiologist who did not review the Veteran’s c-file (claims file). It is stated in the JMR that the audiologist noted that she did not review the Veteran’s c-file before rendering the opinion, and thus her opinion was based on an inaccurate factual premise. The examiner indicated that, “[i]nduction AND discharge exams show hearing loss by VA standards in both ears,” despite the record evidence indicating that the Veteran did not undergo a discharge examination. The parties agreed that because the examiner did not review the claims file and relied on inaccurate factual premise to formulate her decision, the examination is inadequate, and remand is necessary to provide an updated opinion. In review of the June 2015 examination report, it appears that the examiner was provided a form examination report which has options to check and enter in for the respective categories. For example, under “C-file reviewed?,” the examiner placed an “X” next to both “Yes” and “No audiometric discharge audiogram in c-file.” It appears that to the contrary of the JMR, “[i]nduction AND discharge exams show hearing loss by VA standards in both ears,” were the beginning of two form options for the examiner to select, however, were actually left unselected, given the absence of an “X” next to either of the options. The examiner seemed to have provided an opinion for hearing loss that was not a form option; indicating: “VETERAN’S HEARING LOSS IS LESS LIKELY AS NOT RELATED TO MILITARY NOISE EXPOSUREBECAUSE HIS WORK AS A RECREATION SERVICES SPECIALIST DID NOT EXPOSE HIS TO NOISE LEVELS CAPABLE OF CAUSING PERMANENT HEARING LOSS.” However, as this may be unclear and given the terms of the JMR, in order to ensure compliance with VA’s duty to assist to provide an adequate examination and medical opinion, a remand is necessary to afford the Veteran an adequate examination and opinion with proper rationale, and further development as necessary to adjudicate the claim pursuant to the October 2019 JMR. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Furthermore, the during the October 2018 Board video conference hearing, the Veteran testified that his primary care provider told him that when it comes to tinnitus, it is just something he would have to live with and that it was due to old age. There are no medical records in the Veteran’s claim file from his primary care provider. The Veteran should be provided an opportunity to identify any additional outstanding relevant private medical records on remand. An effort must be made to locate and associate any outstanding private medical records with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records related to his claimed bilateral hearing loss disability and tinnitus. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Any negative response should be in writing and associated with the claims file. 2. Obtain all outstanding VA treatment records and associate them with the claims file. 3. Schedule the Veteran for a VA audiological examination for his claimed 1) bilateral hearing loss disability and 2) tinnitus to determine the nature, extent and etiology of the claimed disabilities. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from October 1974 to September 1977. • The Veteran’s military occupational specialty was recreational services specialist. See VBMS entry with document type, “Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867),” receipt date 03/30/1982. • The asserts that his hearing loss and tinnitus are due to his exposure to 1) aircraft that would occasionally fly overhead while he was on the golf course and 2) working in the Airman’s Club where rock bands played very loudly and made it difficult to hear. See 1) VBMS entry with document type, “Hearing Transcript,” receipt date 10/23/2018; 2) VBMS entry with document type, “VA 9 Appeal to Board of Appeals,” receipt date 11/13/2015; 3) VBMS entry with document type, “Notice of Disagreement,” receipt date 08/04/2015; and 4) VBMS entry with document type, “C&P Exam,” receipt date 06/01/2015. • In the August 1974 Report of Medical Examination at entry to service, a clinical evaluation of “ears – general” was normal and a “1” was assigned under H for hearing under the PULHES system. Audiometer results are of record. See VBMS entry with document type, “STR – Medical,” receipt date 03/26/2015, on pages 2-3 (hearing test is on page 23). • In the August 1974 Report of Medical History at entry to service, the Veteran denied any “ear, nose, or throat trouble” and “hearing loss.” See VBMS entry with document type, “STR – Medical,” receipt date 03/26/2015, on pages 4-5. • A March 1975 Physical Profile Serial Report reflects that a “1” was assigned under H for hearing under the PULHES. See VBMS entry with document type, “STR – Medical,” receipt date 03/26/2015, on page 25. • The Veteran declined a physical examination upon separation from service in September 1977. See VBMS entry with document type, “STR – Medical,” receipt date 03/18/2015, on page 6-7. • Of record is the June 2015 VA examination report (contracted). When asked to describe his history of noise exposure, the Veteran reported that while in service, aircraft would occasionally fly overhead while he was on the golf course. When asked about when he noticed tinnitus, the Veteran reported, “A long time,” which the examiner wrote that he (the Veteran) estimated at more than 10 years, but the Veteran had no known date or circumstance of onset. See VBMS entry with document type, “C&P Exam,” receipt date 06/01/2015. • The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: a) Whether the Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes? If so, is it at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? b) Is the Veteran’s claimed tinnitus at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.