Citation Nr: 21004057 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-43 270 DATE: January 25, 2021 REMANDED Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss, is remanded. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1967 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. In January 2020, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran is service connected for bilateral hearing loss. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. 1. Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss, is remanded. Based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant VA records not associated with the claims file. Specifically, the record indicates that the Veteran receives treatment within the Loma Linda VA Healthcare System (VAHCS). See April 2017 Notice of Disagreement (NOD). However, no records relating to treatment prior to August 2017 have been associated with the claims file. See Loma Linda VAHCS records, received December 2017, January 2018, March 2018, November 2019, and March 2020 in CAPRI. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s tinnitus. In July 2016, the Veteran underwent a VA examination in which the examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. In support of this opinion, the examiner noted that the type of tinnitus reported (i.e. intermittent, infrequent, and of short duration) is not the type of tinnitus usually associated with tinnitus due to repeated acoustic trauma. See July 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). However, as discussed above, relevant VA records have not been associated with the claims file. As such, the July 2016 examination is inadequate to the extent the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Moreover, the examiner did not address secondary service connection, and therefore the examination is inadequate as to secondary theories. See July 2016 VA Hearing Loss and Tinnitus DBQ. For these reasons, the Board finds the July 2016 VA examination report to be inadequate for adjudication purposes and, therefore, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran’s tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. Based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary as the evidence indicates that VA records have not been associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra. Second, a remand is necessary to afford the Veteran with an examination regarding the current severity of his service-connected bilateral hearing loss. The Veteran was last afforded a VA examination regarding his bilateral hearing loss in July 2016. See July 2016 VA Hearing Loss and Tinnitus DBQ. The Veteran contends that his hearing has worsened since this examination. See April 2017 NOD. Given that the Veteran’s condition has worsened, the Board finds that a new VA examination is needed to ascertain the current severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including the entirety of the records relating to treatment within Loma Linda VAHCS. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 pandemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss and the etiology of his claimed tinnitus. The entire claims file must be provided to and reviewed by the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset of tinnitus symptomatology, employment, and noise exposure. (b.) Conduct appropriate audiometric and speech discrimination testing in conformity with the requirements of 38 C.F.R. § 4.85. (c.) Provide numeric interpretation of any hearing tests/audiograms conducted, setting forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. The examiner is also asked to provide the average pure tone threshold for these four frequencies. (d.) Opine as to whether it is at least as likely as not i.e. 50 percent or greater probability) that the Veteran’s tinnitus was caused by, or otherwise related to, his active duty service, to include conceded noise exposure. (e.) Opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s tinnitus was caused by his service-connected bilateral hearing loss. (f.) Opine as to whether the Veteran’s tinnitus is a symptom of his service-connected bilateral hearing loss. (g.) Opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s tinnitus underwent an incremental increase (aggravated), regardless of permanence, by his service-connected bilateral hearing loss. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. • The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. • The examiner is further reminded that the mere absence of in-service evidence of tinnitus as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page)   If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.