Citation Nr: 21061886 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-46 912 DATE: October 5, 2021 REMANDED Service connection for bilateral sensorineural hearing loss is remanded. Service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1971 to April 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision denying this appeal in May 2019. In June 2021, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. Service connection for bilateral sensorineural hearing loss and tinnitus is remanded. The parties to the Joint Motion for Remand (JMR) agreed that the Board, in its May 2019 decision, failed to provide adequate reasons and bases to support its decision. In large part this was due to the Board's reliance on an April 2017 VA medical examination and opinion. The parties to the JMR noted that the April 2017 examiner rendered an opinion based on a 2006 Institute of Medicine (IOM) report on noise exposure in the military. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the United States Court of Appeals for Veterans Claims (Court) found that the IOM study contained contradictory findings. The study found that "based on current knowledge of cochlear physiology there was no sufficient basis for the existence of delayed-onset hearing loss." The Court noted, however, the IOM report also indicated "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The parties to the JMR also noted that the April 2017 VA examiner rendered an opinion weighing against service connection for tinnitus on the basis that there was "absence of an objectively verifiable noise exposure." The Veteran, in a September 2017 correspondence, stated that his MOS was 11B1P which is rated as "Highly Probable" of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. The Board, in its decision, found that "in-service acoustic trauma is consistent with the circumstances of the Veteran's service." However, the April 2017 VA examiner provided an unfavorable rationale for tinnitus based, in part, on the absence of objectively verifiable noise exposure. Additionally, the parties to the JMR noted that the Veteran has reported that his hearing loss and tinnitus began during service and "been continuous since my time in the Army." (See September 2017 correspondence). The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). The Board makes no credibility determinations with respect to the specific contention at this time. Given the April 2017 VA examiner's reliance on the 2006 Institute of Medicine (IOM) report, the rationale based in part on the "absence of an objectively verifiable noise exposure" when the Board has conceded that "in-service acoustic trauma is consistent with the circumstances of the Veteran's service," and the failure to consider the Veteran's lay statements regarding continuity of symptomatology, a remand is warranted for the purpose of obtaining an addendum opinion. Additionally, the Board noted that the Veteran had been treated by a private audiologist (Dr. Fink of the Salem Audiology Clinic, Inc.) since 2010 and that these records were not incorporated into the claims file. The parties to the JMR found that there was no citation to any evidence that the VA assisted the Veteran in obtaining these records. Consequently, upon remand, the RO should send the Veteran a VA Form 21-2142 so that these records can be sought. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Fink of the Salem Audiology Clinic, Inc. and any other physician/facility that has treated his hearing loss. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion regarding the etiology of the Veteran's current bilateral hearing loss and tinnitus disabilities. Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss and tinnitus is related to his noise exposure in service, to include from grenade blasts, artillery rounds, machine gun fire, jet engines, and helicopter engines. The examiner should note that the Board has conceded that "in-service acoustic trauma is consistent with the circumstances of the Veteran's service" and that a lack of documented hearing loss in service and/or normal hearing at separation is not, by itself, a sufficient basis for an unfavorable nexus opinion. The examiner is also advised that if he or she relies on the 2006 IOM study for his or her opinion, then he or she must explain why the conclusions of that study apply to this particular Veteran, given its contradictory aspects (as noted by the Court in McCray), and the specific facts of this case. Finally, the examiner is advised that the Veteran contends that his hearing loss and tinnitus have been continuous since service. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing perceivable symptoms. The clinician is further advised, however, that the Board has not made any credibility determinations with respect to this specific contention. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.