Citation Nr: 21002626 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-30 668A 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 in the United States Air Force from April 1971 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in December 2016 and November 2018. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Remand is necessary because the VA etiology opinions of record are inadequate. The September 2020 examiner opined that is it less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of his military service. In support of her opinion, the examiner relied on the presence of normal hearing at service separation with no significant threshold shifts. However, she did not address the Veteran’s in-service noise exposure due to his military occupational specialty in relation to his current hearing loss, relevant service treatment records, or the Veteran’s reports of hearing loss since service. Moreover, the examiner continued to refute the medical plausibility of delayed onset hearing loss based on an Institute of Medicine (IOM) study, indicating “noise-induced hearing loss occurs immediately,” and the United States Court of Appeals for Veterans Claims recently indicated that medical opinions citing this IOM report in this manner appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, an addendum opinion is again warranted on remand. Moreover, as the examiner has attributed the Veteran’s tinnitus to his hearing loss, action on this intertwined claim is deferred. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, refer the claims file to an audiologist for preparation of an addendum opinion. The entire claims file should be made available to, and reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss had its onset in, or is otherwise related to service, to include as a result of conceded noise exposure therein. In addressing this question, please discuss: (a) any threshold shifts among the audiograms (see February 1976, October 1979, September 1984, and December 1990 service treatment records) and the December 1990 report of loss of hearing in his left ear; (b) conceded in-service noise exposure and the Veteran’s statements as to first noticing hearing loss during active duty; and (c) the IOM Report on noise exposure in the military (cited as authority in multiple VA examination reports), which states that it is “unlikely” that the onset of hearing loss begins years after noise exposure, but also states that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” Please note that the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.