Citation Nr: 21065146 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-19 123 DATE: October 25, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1985 until his honorable discharge in November 1985. The Veteran testified at a September 9, 2021, Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. This case is being decided under the Board's "One Touch" initiative program, which expedites the processing of legacy cases following a Board hearing. A transcript of the September 9, 2021, Board hearing will be associated with the file at a later date. This case comes before the Board on appeal from July 17, 2017, decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. 1. Service connection for bilateral hearing loss is remanded. The Board finds remand is required for two reasons. First, a February 2016 VA Audiology Note documents that the Veteran received an audiologic examination and those results are not of record. The VA note indicates an "audiogram is available under ." Therefore, on remand, the VA Regional Office must obtain the audiogram results as part of VA's duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Second, the Veteran received a VA-contracted audiologic examination in June 2017. The examiner stated the Veteran's March 1985 enlistment examination showed hearing loss at 4000 Hertz and 6000 Hertz in the left ear. Thus, the examiner concluded the Veteran had left ear hearing loss prior to his entry into active service. This conclusion, however, is not consistent with VA regulation 38 C.F.R. § 3.385, which defines hearing loss for VA disability purposes as follows: [W]hen the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The March 1985 audiogram results showed the Veteran's auditory threshold at 4000 Hertz was 30 decibels, and there is no evidence his audiologic test results met the other criteria to be considered a disability under section 3.385. Therefore, the Board finds the VA-contracted examiner's conclusion, that the Veteran had left ear hearing loss prior to entry into service, is clearly rebutted by the facts. Therefore, remand is required to obtain an addendum opinion. 2. Service connection for tinnitus is remanded. As to the Veteran's assertion of tinnitus, the June 2017 VA-contracted examiner stated, "There was some hearing loss present at time of entrance into the military, and veteran could not report a date of onset of tinnitus, therefore onset could have been before, during or after military service. Without record of treatment for or complaint of tinnitus, an opinion cannot be given without resorting to speculation." The Board finds this opinion inadequate because the examiner relied on the inaccurate finding that the Veteran had preexisting hearing loss prior to his entry into service. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Thus, remand is required to obtain an addendum opinion. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Obtain the full audiometric test data and results associated with the Veteran's hearing evaluation on February 5, 2016, as indicated in the VA Audiology Note. The VA Audiology Note indicates that the audiogram is available under . 3. After any additional records are associated with the claims file, obtain an addendum opinion from the June 2017 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to the Veteran's military occupational specialty of cavalry scout, which is highly probable for hazardous noise exposure. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The February 5, 2016, VA Audiology Note, documenting the Veteran's hearing evaluation, to include the full audiometric data and results. The examiner is informed that 38 C.F.R. § 3.385 strictly defines hearing loss for VA disability purposes. When determining whether the Veteran had hearing loss prior to active service, the examiner should consider 38 C.F.R. § 3.385. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his bilateral hearing loss, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of hearing loss in service or the assertion that an in-service event, injury, or illness led to hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After any additional records are associated with the claims file, obtain an addendum opinion from the June 2017 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's tinnitus. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to the Veteran's military occupational specialty of cavalry scout, which is highly probable for hazardous noise exposure. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his tinnitus, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of tinnitus in service or the assertion that an in-service event, injury, or illness led to tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.