Citation Nr: A20007356 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190802-20778 DATE: April 30, 2020 REMANDED Service connection for hearing loss of the right ear is remanded. Service connection for hearing loss of the left ear is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1973 to June 1973 with additional service in the Tennessee National Guard from October 1972 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 VA Form 10182, the Veteran opted into the Appeals Modernization Act (AMA) by selecting the evidence submission lane without a Board hearing in his appeal of the July 2019 Supplemental Statement of the Case (SSOC). Accordingly, the Board will only consider the evidence of record at the time of the December 2015 rating decision, and evidence submitted within 90 days of the Veteran’s election of the Evidence Submission lane, which is until October 31, 2019. The Board notes that the Veteran’s claim for hearing loss has been separated as listed on the title page where different standards pertain to each ear. 1. Right ear hearing loss & Left ear hearing loss The claim for entitlement to service connection for right and left ear hearing loss is remanded to correct a duty to assist error that occurred prior to the December 2015 rating decision on appeal. The RO obtained a VA examination and medical opinion in November 2015 prior to the December 2015 rating decision on appeal. However, this medical opinion did not utilize the correct legal standard as it pertains to preexisting disorders. Given such, remand is warranted. As to the Veteran’s left ear, the examiner also noted that the Veteran’s military occupation specialty (MOS) was an Indirect Fire Crewman, and noted the various types of weapons the Veteran was exposed to, but did not address whether the Veteran’s noise exposure is etiologically related to his current hearing loss disability. In this regard, the Board notes that the June 2019 VA examiner provided a positive nexus opinion for the Veteran’s tinnitus based on the Veteran’s MOS which is associated high probability for noise exposure. Thus, on remand, the VA examiner should address whether the Veteran’s hearing loss is related to or caused by his conceded military noise exposure. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion for the Veteran’s hearing loss claim by a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination 2. Based on a review of the record, and a new examination if necessary, the reviewer must address the following. The examiner is requested to provide the following information: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left ear hearing loss began in or is related to his time in the service, specifically to include military noise exposure in service, WHICH IS CONCEDED? In providing his/her opinion, the examiner should address the private medical opinion from Dr. K.C.L., and provide a basis for agreement or disagreement with Dr. K.C.L.’s opinion. The examiner should note that the Veteran’s exposure to military noise has been conceded. The examiner must also consider the Veteran’s statements regarding onset and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). (b.) Did the Veteran’s right ear hearing loss clearly and unmistakably pre-exist service? i. If so, is there clear and unmistakable evidence that the Veteran’s right ear hearing loss was not aggravated (did not undergo an increase in severity) beyond the condition’s normal progression during the Veteran’s active duty service? ii. If, and only if, if the examiner finds that the Veteran’s right ear hearing loss condition either did not clearly and unmistakably pre-exist service or was not clearly and unmistakably aggravated beyond the natural progress, is it at least as likely as not that his right ear hearing loss is related to service, specifically to include military noise exposure in service? (c.) The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss was caused by the Veteran’s service-connected tinnitus or (d.) Whether it is at least likely as not that the Veteran’s hearing loss disability underwent any incremental increase (aggravated) in disability, regardless of its permanence by the Veteran’s service-connected tinnitus? • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. • The examination report must include a complete rationale for all opinions expressed. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. • If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. • If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 3. 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. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, 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.