Citation Nr: 21004603 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-34 239 DATE: January 27, 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 October 1974 to January 1984. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A March 2014 Board decision reopened the claims for service connection for bilateral hearing loss and tinnitus, and remanded the appeal for further evidentiary development. The Board additionally remanded the claims in August 2016, March 2017 and January 2018. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2019, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claim (Court). In an August 2020 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate the October 2019 Board decision and remand the appeal to the Board for further action consistent with the Joint Motion. In an August 2020, the Court granted the Joint Motion. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus Initially, the Board finds it necessary to point out an inaccuracy in the Joint Motion to ensure that readjudication on remand is not impacted. Specifically, in the August 2020 Joint Motion, the parties inaccurately recharacterized both the March 2014 Board remand and the VA examiner’s opinion in 2018. In this regard, the parties changed the wording in a quote of the Board 2014 remand to read, “‘based in part on the fact that [Appellant] had no hearing loss [until] six months after separation [from service].’” See Joint Motion, p. 2. Likewise, the parties recharacterized the 2018 VA examiner’s opinion as, “The 2018 VA opinion provided a negative nexus opinion based in part on the fact that Appellant’s audiograms showed normal hearing until an audiogram conducted several months after separation from service.” Id. The parties’ addition of the word “until” into both sentences changes the meaning to suggest hearing loss was shown on examination six/several months after separation. As neither the 2014 remand nor the 2018 VA examiner’s opinion used that term or implied that hearing loss was shown on the 1984 VA audiology examination, the Board finds the parties’ insertion of the word “until” into both sentences in the Joint Motion to be inappropriate. See McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009). Notwithstanding the above, in light of the Joint Motion, the Board finds that a remand for an addendum opinion is needed in this case to more specifically address threshold shifts during in-service audiograms (November 1973, July 1975, December 1977, August 1979) and the June 1984 VA examination. The claimed tinnitus is inextricably intertwined with the claimed bilateral hearing loss; thus, a remand of the tinnitus claim is also warranted. The matters are REMANDED for the following actions: 1. Updated VA treatment records since July 2019 should be associated with the claims file. If any requested records are unavailable, the Veteran should be notified of such. 2. Provide the claims file to an audiologist to obtain a supplemental opinion with respect to the Veteran’s service connection claim for bilateral hearing loss. If another examination is deemed necessary to respond the question presented, one should be scheduled. Following a review of the claims file, the audiologist should provide an opinion explaining why the threshold shifts, if any, between November 1973, July 1975, December 1977, August 1979 and June 1984 audiological evaluations, are or are not significant in determining whether the Veteran’s current hearing loss arose in service or is otherwise related to service, to include noise exposure therein. 3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.