Citation Nr: 21001477 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-13 340 DATE: January 8, 2021 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 March 1968 to March 1970, including service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The Board observes that the RO initially denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus in an April 2014 rating decision primarily based on his failure to report for a VA examination. The Veteran, in October 2014, provided good cause for not attending the scheduled examination (late receipt of VA examination notification letter) and requested a rescheduled examination. The Veteran was afforded a VA hearing loss and tinnitus examination in March 2015; the RO again denied the Veteran’s claims in a March 2015 rating decision. The Board notes that in the March 2015 rating decision on appeal, the RO framed the Veteran’s October 2014 request for a rescheduled VA examination as a reopened claim. Because the Veteran’s lay evidence was received within the one-year period after the April 2014 rating decision, the Board finds that rating decision had not yet become final. As such, the March 2015 rating decision was a reconsideration of the prior determination, rather than a reopening. 38 C.F.R. § 3.156(b). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Issues 1-2. The Veteran contends that his current bilateral hearing loss and tinnitus had their onset in service as a result of excessive noise exposure. Specifically, the Veteran argues that his hearing loss and tinnitus disabilities are due to acoustic trauma related to his participation in combat missions in the Republic of Vietnam. See Hearing Transcript at 3-5 (February 2020). For the reasons discussed below, the Board finds that remand is necessary. As a preliminary matter, the Board notes that the combat provisions of 38 U.S.C. § 1154 (b) provide that satisfactory lay or other evidence will be accepted as sufficient proof that an injury or disease was incurred or aggravated in combat if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record of such incurrence or aggravation. In other words, the provisions lighten the evidentiary burden on a combat veteran with respect to showing an in-service injury. Collette v. Brown, 82 F.3d 389, 39293 (Fed. Cir. 1996). Here, the record shows that the Veteran’s military occupational specialty (MOS) was light weapons infantryman. The record also reflects that he was awarded the Army Commendation Medal (First Oak Leaf Cluster) with “V” device for his heroic service as a mortarman in May 1969 against a hostile force in the Republic of Vietnam. The Veteran was also presented with an Air Medal for his participation in sustained aerial flights in support of combat ground forces in the Republic of Vietnam from August 1968 to November 1968 and was noted to have participated in over twenty-five aerial missions over hostile territory. Therefore, in this case, the Veteran’s lay statements provide sufficient evidence that an injury or disease was incurred in combat as his statements are consistent with the circumstances, conditions, and hardships of his service. Next, the Veteran was found to have bilateral sensorineural hearing loss and tinnitus during a VA examination conducted in March 2015. The examiner concluded that the Veteran’s bilateral hearing loss and tinnitus disabilities were less likely as not caused by or a result of military noise exposure. The examiner provided a rationale that the Veteran’s enlistment and separation examination reports dated September 1967 and February 1970 respectively, showed his hearing was within normal limits in both ears. In addition, the examiner noted the Veteran’s service treatment records (STRs) were silent for any complaints of hearing loss and/or tinnitus. She also referenced the Veteran's inability to identify the date of onset of his tinnitus symptoms. Lastly, the VA examiner cited a September 2005 Institute of Medicine's study entitled Noise & Military Service: Implications for Hearing loss and Tinnitus which determined that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects such as noise-induced hearing loss would occur. She further indicated that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The Board finds that March 2015 VA examination is inadequate for the following reasons. First, the VA examiner did not consider whether the Veteran's bilateral hearing loss and tinnitus disabilities are etiologically related to his reports of in-service noise exposure from the firing of machine guns, mortars and artillery rounds, without the use of hearing protection, as well as noise exposure from the firing of 50 caliber machine guns and noisy exhausts located on the tanks on which he rode. See Veteran’s Correspondence (April 2015). See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). Second, the VA examiner relied on the absence of evidence of hearing loss and tinnitus complaints in the Veteran's STRs and also concluded that there was no objective, verifiable in-service noise injury, without any consideration of the Veteran’s lay statements and circumstances of his service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In general, an adequate medical opinion must support its conclusion with an analysis that can be weighed against contrary opinions and be based upon prior medical history and examinations. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Here, the Veteran's reports of noise exposure during combat operations in the Republic of Vietnam are consistent with the circumstances of his service. The examiner, however, made no attempt to explain why the claimed in-service noise exposure did not cause or contribute to the Veteran's bilateral hearing loss and tinnitus disabilities. Third, the absence of in-service evidence of a hearing loss disability is not fatal to the Veteran's claim for service connection for a hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). It is also noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 102, 124-25. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Because the March 2015 VA medical opinions are incomplete with respect to addressing the relationship between the Veteran’s claimed in-service noise exposure and his current bilateral hearing loss and tinnitus, remand is necessary to obtain a new VA examination and medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2016 to the Present. 2. Schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus disabilities. The claims file, including a complete copy of this remand, must be made available to the examiner for review. The examiner must elicit from the Veteran a full history of his noise exposure during service as well as any occupational and recreational noise exposure following his separation from service. The examiner must detail the reported symptoms in service and thereafter, including the nature, onset, continuity, and progression of those symptoms; if there is any medical reason to accept or reject the proposition that his reported symptoms began during service and thereafter represented the onset of his bilateral hearing loss and tinnitus disabilities, this should be noted. The examiner is advised that under the combat presumption, the Veteran’s in-service acoustic trauma stemming from his participation in combat operations in the Republic of Vietnam is conceded. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability), that the Veteran’s bilateral hearing loss and tinnitus: (a.) began during active service; or (b.) manifested within one year of his active service separation; or (c.) was noted during service with continuity of the same symptomatology since service; or (d.) is related to an in-service injury, event or disease, including in-service noise exposure related to machine guns, mortars, artillery and tanks. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.