Citation Nr: 21001076 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-12 965 DATE: January 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from April 1980 to March 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2009 and December 2010 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This case was previously remanded by the Board in March 2015 and March 2016 Although the Veteran was previously represented by the Marine Corps League, the Veteran has consistently reported through correspondence that he is no longer represented by this Veterans Service Organization (VSO). Notably, in November 2020, the representative received notification from the Board indicating that it had not submitted an Informal Hearing Present (IHP) within the 120 days allotted for IHP submission. This notification reported that the organization had previously been notified that the 120-day deadline had passed, and that since an IHP had not been provided to date, the case would be reassigned to the Board for adjudication. Accordingly, the Board will proceed with adjudication at this time, recognizing the Veteran as pro se. This appeal has been pending since March 31, 2009, when the Veteran filed claims of service connection for bilateral hearing loss and for tinnitus, and as noted above this case has been twice remanded by the Board, most recently in March 2016, almost five years ago. The Veteran asserts that service connection is warranted because of his extensive exposure to in-service trauma without hearing protection and the onset of his hearing loss and tinnitus many years ago. VA grants service connection for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Here, it is unclear whether the Veteran first noticed or was made aware of his diminished hearing acuity and/or ringing in his ears. As the Board noted in the March 2016 and reiterates now, although the service treatment records do not reflect complaints of, treatment for, or a diagnosis of bilateral hearing loss, the Veteran’s Form DD 214, Certificate of Release or Discharge from Active Duty, reveals that the Veteran’s MOS was Strategic Aircraft Maintenance Specialist. Therefore, the evidence establishes that the Veteran had in-service noise exposure, as his descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. There is considerable lay and medical evidence indicating that the Veteran has had impaired hearing and ringing in his ears (tinnitus) for many years. In addition, the Veteran has the disabilities for which he is seeking service connection. Thus, the resolution of this appeal turns on whether the Veteran’s bilateral hearing loss and tinnitus are related to or had their onsets in service. It is unclear, however, whether the Veteran’s bilateral hearing loss and tinnitus began during service or within the first post-service year. See Fountain v McDonald, 27 Vet. App. 258 (2015). In the March 2016 remand, the examiner was specifically instructed not to rely solely on the absence of hearing loss in service as the basis for a negative opinion. However, in the August 2016 examination, the examiner’s opinion rationale relied solely on this basis. Specifically, the examiner opined that the Veteran had showed normal bilateral hearing ability by VA standards on both military entrance and separation hearing tests, with no significant threshold increase in service. Although an addendum opinion was obtained in September 2016, this addendum relied largely on the same reasoning, stating that the Veteran displayed normal bilateral hearing ability upon leaving the military and no evidence of military noise-induced hearing loss. The examiner further stated that it had been established that there was no delay of onset between the precipitating noise exposure and resulting hearing loss and concluded that the Veteran’s hearing loss was likely incurred at some time after he completed military service. Although the latter part of this opinion was not solely based on absence of hearing loss in service, the statement regarding lack of delayed onset amounts to a bare conclusion, as it was not supported by any explanation as to how it had been established that there was no delayed onset. As such, remand for an additional examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that VA must provide the Veteran with an adequate examination, once it has undertaken the effort to do so). Additionally, in correspondence received in November 2016 and September 2015, the Veteran provided greater detail regarding his in-service and post-military occupational noise exposure. The Veteran clarified that although he worked in the mining industry following service, he was not exposed to excessive noise while in this job, but rather, drove haulage trucks and was “exposed to about the same noise levels as you would be driving on the freeway.” Such should be considered upon remand. Notably, in correspondence from the Veteran in October 2016, he expressed concern regarding reference to results from his separation examination in his VA examinations. He relayed that he was never, in fact, afforded a separation examination. The Veteran’s service treatment records confirm this statement, and do not contain a separation examination. However, the records contain several hearing conservation data records, documenting comparisons between various current audiograms and an initial reference audiogram that was completed in October 1980. The final audiogram was completed in February 1989, just one month prior to the Veteran’s separation. As such, this audiogram has been identified as the “separation examination” on VA audiological examinations. Regarding tinnitus, as noted in the March 2016 remand, the Veteran’s tinnitus was found to be “as likely as not” a symptom of his hearing loss in the November 2009 VA tinnitus examination. In the August 2016 VA examination, a negative opinion was provided on the basis that the Veteran had normal bilateral hearing in-service without evidence of military noise-induced hearing loss. Accordingly, the Board finds that the Veteran’s claim of entitlement to service connection for tinnitus is inextricably intertwined with his claim for entitlement to service connection for bilateral hearing loss; therefore, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing and tinnitus problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible), to be conducted, if possible, by an otolaryngologist. The examiner must opine as to whether it is at least as likely as not the Veteran’s bilateral hearing loss and tinnitus are related to his time in service, to include as due to the Veteran’s recognized in-service noise exposure. The Veteran's reports regarding noise exposure, as well as his lay statements regarding his post-military occupational noise exposure, must be accepted as true. After a review of the claims file, including the Veteran’s lay statements regarding the onset of his hearing loss, please opine as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss disability had its onset in service or resulted from the Veteran’s acoustic trauma in service. In doing so, the examiner must discuss the impact of the Veteran’s in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service acoustic trauma In offering your opinions, please acknowledge and discuss the Veteran’s competent and credible report as to his in-service and post-service noise exposure. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.