Citation Nr: 21002449 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-33 240 DATE: January 13, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1970 to November 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In June 2019 and in August 2020, the Board remanded the claims for further development. 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 tinnitus is remanded. 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. Issues 1 & 2: The Veteran contends that he first noticed bilateral hearing loss and tinnitus during active service and that both conditions are due to hazardous noise exposure during active service. See Hearing Transcript (November 2018). He testified that he developed hearing loss and tinnitus four to five months into his deployment to the Republic of Vietnam where he was exposed constantly to loud noise. Id. He explained that he operated pneumatic rock drill in quarry all day drilling holes, which were then filled with dynamite and blown up; ran air compressor, which made a lot of noise; and could also hear noise from rock crushing machinery and from rifle shots. Id. Although a VA examination was provided in September 2020, the Board finds that the RO has not substantially complied with the Board’s prior remand order. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the matter is remanded again. As a threshold matter, the Board notes that VA has conceded that the Veteran’s bilateral hearing loss meets the criteria for a disability under VA regulations and that the Veteran has tinnitus. Also, VA has conceded that the Veteran was exposed to acoustic trauma in service. In its prior remands, the Board found the March 2015 and November 2019 VA examinations inadequate. First, with regard to the newly obtained September 2020 VA medical opinion on the Veteran’s hearing loss and tinnitus, the opinion was based, at least partly, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In this regard, in forming the opinion, the examiner attributed the Veteran’s hearing loss and tinnitus to post-service occupational noise exposure for “more than 30 years” without factoring in that the Veteran wore hearing protection based on his reports at the November 2018 hearing and based on the September 2016 private audiologic evaluation. See Medical Treatment Record - Non-Government Facility (November 2018). Second, the September 2020 medical opinion is inadequate as it is based primarily on the absence of documented evidence of hearing loss and tinnitus until 2015 without any discussion of the Veteran’s lay statements as the Board requested in its August 2020 remand. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate”); see also Stegall, supra. As the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure, the examiner had to provide a fully reasoned explanation for any basis to support or doubt the history provided by the Veteran. Such was not done in this case. As a result, a complete rationale for the negative opinions regarding bilateral hearing loss and tinnitus was not provided, because it was based solely on the normal findings at enlistment and separation, no documented hearing loss and tinnitus until 2015 and post-service noise exposure. Moreover, the opinion did not account for specific facts, including that the Veteran wore hearing protection when exposed to noise after service. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Nor did the opinion account for the possibility that the Veteran’s in-service noise exposure was one of the causes of his current hearing loss and tinnitus, assuming instead that there can be only one cause of the Veteran’s bilateral hearing loss and tinnitus. See, e.g., Taylor v. McDonald, 27 Vet. App. 158, 166 (2014) (faulting the Board, with respect to a claim that a current disability was caused by in-service exposure to Agent Orange, for relying on a medical opinion suggesting that the disability was related to an intervening post-service infection, where the opinion did not discuss the possibility of Agent Orange as a contributory cause). The opinion again does not adequately address whether any current hearing loss and tinnitus are otherwise caused by or a result of the in-service noise exposure. Therefore, the medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Lastly, the Board notes that the record shows the Veteran continues to receive treatment at the Vet Center, where, based on a July 2018 note, he sought treatment for hearing loss and tinnitus in 2016 and continues to receive treatment with the Hartford Vet Center. VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). No records of this continued treatment have been associated with the Veteran’s file. Therefore, remand is again necessary to obtain these records via traditional process. See 38 C.F.R. § 3.159. In remanding this matter, 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. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Obtain all treatment records from the VA Hartford Vet Center. The request should indicate that VA is seeking the actual records and not a summary of the Veteran’s treatment or symptoms. Document all requests for information as well as all responses in the claims file. 3. Obtain an addendum opinion from an otolaryngologist to determine the nature and etiology of any hearing loss and tinnitus. The claims file along with a copy of this remand the Board’s prior remand should be reviewed. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his current hearing disabilities, this should be noted. The opinion should address the following: (a)Whether any hearing loss disability at least as likely as not (1) began during active service, (2)manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, to include in-service noise exposure. Explain. (b)Whether any tinnitus at least as likely as not (1) began during active service, (2)manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, to include in-service noise exposure. Explain. The opinion should reflect consideration of the Veteran’s documented relevant history and assertions, to include that his hearing loss and tinnitus(even if it is of delayed onset) is related to in-service noise exposure, described as noise exposure related to rifle firing and from operating a pneumatic rock drill. See generally, Hearing Transcript (November 2018). The opinion should also 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). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran (e.g. inconsistent reporting of onset of symptoms, etc.), the examiner should provide a fully reasoned explanation. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The 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; 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.