Citation Nr: 21002622 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-06 673 DATE: January 14, 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 1967 to April 1971. He appeals an April 2011 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for bilateral hearing loss and tinnitus. In August 2018, the Board remanded the matters for additional development. In a December 2019 decision, the Board denied the Veteran’s claims. The Veteran appealed those denials to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMR. The case has returned to the Board for further appellate proceedings. The Veteran attended a VA examination in September 2019. When asked to opine whether the Veteran’s hearing loss was at least as likely as not caused by or the result of an event during his service, the examiner stated that he could not render such an opinion “without resorting to speculation.” See September 2019 VA examination report. Nevertheless, the examiner went on to provide a negative nexus opinion as to the Veteran’s current hearing loss diagnosis and his time in service. The examiner’s statements are contradictory in nature, and therefore cannot be the basis of an adequate examination. The Board has no way of knowing whether the examiner’s opinion is one of speculation or a negative opinion based on his expertise and the medical evidence of record. The Court has held that in order to be adequate to satisfy the duty to assist, a medical examiner must reach clear conclusions, with supporting data and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When an examiner states that he or she is unable to reach such conclusions without resorting to speculation, the Court has held that the examiner must explain the reason for such an inability. Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). The Board finds that the September 2019 VA examiner did not explain such reason and it contains an unclear conclusion given the internal contradictory statements. Further, the Veteran’s STRs indicate that he reported ear trouble on July 31, 1969 and was prescribed medication. A follow up treatment note on August 1, 1969 again lists ear trouble and notes that the Veteran was advised to flush with warm water and to apply a medication for canal swelling. Although the December 2019 Board decision and the September 2019 VA examiner both discussed the Veteran’s August 1970 diagnosis of otitis media, neither addressed the above detailed “ear trouble” within his STRs, which are indeed relevant to his current claims for service connection for bilateral hearing loss and tinnitus and must also be addressed and considered by the reviewing clinician upon remand. Lastly, the Veteran submitted an August 2020 statement confirming a history of ear infections, alluding that he received treatment for said ear infections at VA treatment facilities at least yearly prior to his move to Florida in 1988. See August 2020 Veteran statement. See also March 2011 VA examination report. As such, the AOJ should attempt to obtain and associate any and all outstanding VA treatment records not already associated with the claims file, including the records referenced by the Veteran prior to 1988. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral hearing loss and tinnitus that are not already of record, to include VA treatment records prior to 1988 regarding the treatment of ear infections. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s bilateral hearing loss and tinnitus were incurred in, or is otherwise related to, his time on active service? When rendering this opinion, the reviewing clinician should specifically address the July and August 1969 reports of “ear trouble” noted in the Veteran’s STRs. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.