Citation Nr: 21002200 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-30 829 DATE: January 13, 2021 REMANDED Service connection for a bilateral hearing loss disability is remanded. Service connection for bilateral tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from September 1969 to September 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision which denied service connection for bilateral hearing loss and bilateral tinnitus. The Veteran’s notice of disagreement (NOD) was received in November 2016. The RO issued the statement of the case (SOC) in May 2018, and the Veteran’s VA Form 9, substantive appeal was received in June 2018. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for bilateral tinnitus is remanded. Unfortunately, a significant number of documents are missing from the claims file. All of the Veteran's service treatment records (STRs) along with his original claim for service connection for bilateral hearing loss and tinnitus are missing from the claims file. Furthermore, other than a copy of a June 2016 private medical opinion which was resubmitted by the Veteran in November 2016, no documents dated prior to the August 2, 2016 VA Exam Request are of record. The August 2016 rating decision references the Veteran’s STRs, VA-Form 21-22, the Veteran’s original claim, private treatment records from Progressive Audiology Center, and a private physician statement and medical opinion but none of these documents are of record. The absence of these documents hinders the Board's ability to adjudicate the Veteran's appeal. July 2020 VA email correspondence indicates that efforts were being made to locate the missing documents, but to date these documents have not been reassociated with the claims file. A Memorandum of Unavailability has not been issued regarding these documents. On remand, VA must attempt to notify the Veteran and his representative of the missing documents and provide an opportunity for resubmission. Further, the Board finds that an addendum opinion is warranted to address the Veteran's claims for service connection. The Board notes that the Veteran was afforded an August 2016 VA examination to address the etiology of his disabilities. The examination report indicates that the Veteran has current diagnoses of a bilateral hearing loss disability and tinnitus. The examiner noted that the Veteran did not have a post-service hearing test until 2012. While the examiner noted the Veteran’s report of serving one year in a combat zone in Vietnam, the examiner concluded that “with no evidence of acoustic noise injury or trauma during military service, it is less likely as not that the Veteran's current hearing loss is caused by or a result of military noise exposure.” The VA examiner similarly opined that “there is no evidence that acoustic trauma or injury occurred during military service to cause the Veteran’s tinnitus.” While the examiner noted that the Veteran reported onset of his tinnitus in the 1980s, the examiner also found that the Veteran’s tinnitus is at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. In a November 2016 lay statement, the Veteran reported serving at a compound next to Danang Airforce Base and hearing planes, jets and helicopters constantly taking off and landing. He also reported that the whole area around the Base was repeatedly hit with rockets and mortars. See also August 2018 VA audiology note indicating in-service noise exposure to rifles, artillery, and aircraft. The Veteran also stated that a hearing test was conducted at his place of employment in the 1970s and he was told that he had hearing loss since his employment physical in 1968. He also reported first receiving hearing aids in 1995 but stated that he cannot get these records because the company is no longer in business. While the Veteran’s STRs are not of record, the Veteran’s DD 214 indicates that he received the Vietnam Service Medal and Vietnam Campaign Medal and had 11 months and 29 days of foreign and/or sea service. The August 2016 VA examiner was unable to consider or address the Veteran’s reports of significant noise exposure during active service, his reports of being diagnosed with hearing loss shortly following active service, or his statement that he was first given hearing aids in 1995. The only other medical opinion of record is the June 2016 private medical opinion resubmitted by the Veteran in November 2016. In the opinion, Dr. J.G. stated that the Veteran's service medical records had been reviewed, and in his opinion, the Veteran's current bilateral hearing loss and tinnitus are related to his active service. The June 2016 private medical opinion on the Veteran's bilateral hearing loss disability and tinnitus was a conclusory statement that did not explain how the private practitioner came to his conclusion. A conclusory medical opinion that is unaccompanied by rationale is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the forgoing reasons, an addendum etiology opinion which adequately addresses the Veteran’s lay statements should be obtained on remand. As the August 2016 VA examiner found that the Veteran’s tinnitus is at least as likely as not a symptom associated with his hearing loss, the issue of tinnitus is inextricably intertwined with the claim of service connection for bilateral hearing loss. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). In documentation dated November 2016, the Veteran appears to be making a Freedom of Information Act (FOIA) request for a copy of the August 2016 VA audiology examination report. While there are many documents missing from the claims file, there is no indication from the evidence of record that this request has been acknowledged or fulfilled. As it appears there may be an outstanding FOIA request, the RO is required on remand to fulfill any outstanding request. The matters are REMANDED for the following action: 1. Provide the Veteran with the requested copy of the August 2016 VA audiology examination report in compliance with FOIA. 2. Attempt to obtain all documents prior to August 2, 2016 which were previously a part of the claims file, including the Veteran's complete service treatment records and initial claim. If these documents are unavailable, the AOJ must issue a Formal Finding of Unavailability. If the documents are unable to be reassociated with the claims file, notify the Veteran and his representative that all documents received prior to August 2, 2016 are missing from the claims file. Request that the documents be resubmitted. 2. After completing the above development, obtain an addendum opinion from an audiologist. The audiologist should opine as to: Whether it is at least as likely as not that the Veteran’s bilateral hearing loss and/or tinnitus was incurred in service, and/or is causally related to his service. The audiologist should address the Veteran’s reported in-service noise exposure in the form of rifles, artillery, and aircraft The audiologist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the audiologist rejects any reports of symptomatology, a reason for doing so must be provided. The audiologist is requested to provide full rationale for all conclusions. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.