Citation Nr: 20042340 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 15-23 226 DATE: June 23, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1978. This matter comes on appeal before the Board of Veteran’s Appeals (Board) from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. The issue on appeal was previously remanded by the Board in July 2018 and pursuant to such remand, the Veteran was afforded a VA audiology examination in January 2019, and an addendum medical opinion was obtained in July 2019. The case has since returned to the Board for further appellate consideration. The Veteran contends that his bilateral hearing loss and tinnitus is related to acoustic trauma in service as a combat engineer. The Board recognizes that the Veteran has been diagnosed with bilateral hearing loss for VA purposes and tinnitus. See August 2004 VAMC Shreveport Audiology Consultation; October 2000 Audiometric Record Form. Unfortunately, the Board must remand both claims because the January 2019 VA medical opinion and the July 2019 addendum did not comply with the Board’s July 2018 remand directives. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, a remand by the Board confers on a veteran the right to compliance with the Board’s remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board in July 2018 requested a VA examination and opinion for direct service connection that addressed the Veteran’s October 1978 audiogram, the February 2007 private medical opinion by M.R.L., M.D., the 2013 statement from Avada Hearing Care Centers, and the Veteran’s reports of reduced hearing during and after service. Any opinion by the examiner was to be accompanied by rationale. See July 2018 Board Remand. A medical opinion was obtained in January 2019 which opined that the Veteran’s bilateral hearing loss and tinnitus was less likely as not related to service. The examiner, without reference to the listed remand orders, concluded that because there was no significant shift in hearing between his induction and separation examination and no complaints while in service, or within one year after service, the bilateral hearing loss and tinnitus was not related to service. An addendum medical opinion was obtained in July 2019 which came to the same conclusion as the January 2019 medical opinion. In the addendum, the examiner stated that she reviewed the October 1978 audiogram, and found it could not be relied upon because the two graphs documenting the results for the left ear noted “valid?” and “invalid”. The examiner further stated that the February 2007 private physicians opinion and 2013 Avada Hearing Care Center note were mere conclusory statements. Finally, the examiner found that “This scientific evidence clearly and unmistakably refutes the provided opinions and statements that the Veteran’s current hearing acuity was caused by or a result of military service. Available scientific evidence outweighs lay statements and fails to support a nexus between Veteran’s current hearing acuity and military service.” See July 2019 VA Medical Addendum. The VA examiner’s opinion and addendum did not adequately address the questions posed in the July 2018 remand order and therefore an additional remand is appropriate for an addendum medical opinion. In regard to the February 2007 private physician’s opinion and 2013 Avada Hearing Center note, the examiner simply recited one portion of each and did not provide any additional comment in the review of evidence or in the opinion. Further, the examiner failed to address the Veteran’s lay statements that he had hearing issues from service forward, or that he experienced acoustic trauma from demolition and heavy artillery. Moreover, the examiner provided no rationale for assigning more probative weight to the lack of shift in hearing in between induction and separation over the Veteran’s lay statements, the February 2007 private physicians opinion, or the 2013 medical note in concluding that the current bilateral hearing loss and tinnitus was not related to service. Lastly, the examiner does not cite to any scientific evidence that purports to “clearly and unmistakably” go against a nexus between the Veteran’s hearing loss and tinnitus and his service. To the extent that the examiner is relying on a 2006 study from the Institute of Medicine (IOM), the Board notes that the study is ultimately inconclusive as to the issue of delayed onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). For these reasons, a remand is needed to obtain an adequate opinion. Inasmuch as the Board is remanding the claim for an additional opinion, the Board observes that the Veteran’s service personnel record is not present in the file. The RO should obtain the records and, once obtained, associate them with the file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Obtain the Veteran’s service personnel records and any outstanding pertinent VA treatment records for inclusion in the Veteran’s electronic claims file. 2. Then, obtain another medical opinion from the January/July 2019 VA audiologist to help ascertain the likely etiology of the Veteran’s bilateral hearing loss and tinnitus disabilities. The claims file and a copy of this Remand will be made available to the examiner, who will acknowledge receipt and review of these materials. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety, the examiner is asked to respond to the following: (a) Clarify, with complete rationale, whether the Veteran’s hearing loss disability, at least as likely as not (50 percent probability or greater) had its onset in service or is otherwise related to it, including in-service noise exposure. *Specifically, the examiner is asked to: (i) explain why she discounted Dr. Lewis’ February 2007 private opinion and the August 2013 Statement of Need from Avada Hearing Care Centers (particularly the Veteran’s statement that hearing loss had been a problem for 25 years); (ii) address the lay reports of in-service acoustic trauma, and reduced hearing acuity and tinnitus during service and thereafter; (iii) address any impact that the Veteran’s civilian job as a laborer for a company that built central air conditioners had on his hearing acuity; and (iv) if relying on the IOM study, the examiner is asked to state why the conclusions of that study apply to this particular Veteran, given its contradictory aspects noted by the Court in McCray. Note: The examiner is advised that the 2006 IOM study is inconclusive regarding delayed-onset hearing loss. (b) Clarify, with complete rationale, whether the Veteran’s tinnitus, at least as likely as not (50 percent probability or greater) had its onset in service or is otherwise related to it, including in-service noise exposure. 3. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer 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.