Citation Nr: 21063128 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-38 327 DATE: October 13, 2021 REMANDED The issue of service connection for right ear hearing loss is remanded. The issue of service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service from January 1969 to January 1971. This matter was previously before the Board of Veterans' Appeals (Board) in March 2020 when the claim of service connection for right ear hearing loss was reopened, and the claims of service connection for right ear hearing loss and tinnitus were denied. A July 2021 joint motion for partial remand (JMPR) from the United States Court of Appeals for Veterans Claims (Court) vacated the March 2020 Board decision, in part, that denied the claims of service connection for right ear hearing loss and tinnitus and remanded the matter consistent with the terms of the JMPR. The Board has determined that additional development is necessary, and the matter is REMANDED for a new VA audiological examination and opinions. 1. The issue of service connection for right ear hearing loss is remanded. 2. The issue of service connection for tinnitus is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: On the issue of service connection for right ear hearing loss, in providing the negative nexus opinion, the April 2016 VA examiner appears to have relied entirely on The Institute of Medicine Report (IOM) on noise exposure in the military (2006), which found "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." However, the examiner did not discuss the Veteran's report of exposure to excessive noise from gunfire and explosions without hearing protection in-service, his report of post-service occupational noise exposure with hearing protection, or his lack of recreational noise exposure post-service. The June 2018 VA examiner also provided a negative nexus opinion. Like the April 2016 VA examiner's opinion, the June 2018 examiner did not discuss the Veteran's in-service noise exposure without hearing protection, his post-service occupational noise exposure with hearing protection, or his lack of recreational noise exposure post-service. Instead, the examiner's rationale was merely that the Veteran's hearing was within normal limits at service separation, with no significant changes in hearing. Thus, the April 2016 and June 2018 VA opinions are inadequate as to the etiology of the Veteran's right ear hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a new VA examination and opinion is necessary. On the issue of service connection for tinnitus, the April 2016 and June 2018 VA examiners provided negative nexus opinions. Both examiners quoted the IOM report that "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases" and that "[a] more complete understanding of the mechanisms by which tinnitus is generated will be needed before the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected." However, these examinations are inadequate because they do not provide a rationale based on the facts of the Veteran's case. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Therefore, a new VA examination and opinion is necessary. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of the Veteran's right ear hearing loss and tinnitus. The Veteran's claims file, to include a copy of this Remand, must be reviewed by the examiner. The examination report should reflect that this review was done. The examiner is ADVISED that the Veteran's service personnel records reveal that he had a military occupational specialty (MOS) of a Pioneer. Such MOS has been associated with a high likelihood of exposure to acoustic trauma. Therefore, the Veteran's in-service exposure to acoustic trauma is PRESUMED FOUND. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: (a.) Provide an opinion as to whether the Veteran's current right ear hearing loss is related to his service, to include in-service exposure to acoustic trauma, which was been PRESUMED. (b.) Provide an opinion as to whether the Veteran's tinnitus is related to his service, to include in-service exposure to acoustic trauma, which was been PRESUMED. (c.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. (d.) If the examiner determines that the Veteran's right ear hearing loss AND/OR tinnitus is not related to his service, to include in-service exposure to acoustic trauma, which was been PRESUMED, to the extent possible, provide an etiological opinion as to the likely etiology of his condition(s). The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran's in-service exposure to acoustic trauma is PRESUMED. * The January 1969 service entrance examination. * The December 1970 service separation examination. * The Veteran's report of post-service occupational noise exposure with hearing protection and his lack of recreational noise exposure post-service. * The April 2016 VA examination. * The June 2018 VA examination. The examiner is ADVISED that an opinion that is based merely on available medical literature without any rationale that is specific to the Veteran's particular medical condition and circumstances is not adequate. See Bailey, supra. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 3. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.