Citation Nr: A21017207 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 210816-178784 DATE: October 25, 2021 REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for residuals of low back strain is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1964 to March 1967. Regarding the claims of service connection for bilateral hearing loss and tinnitus, in October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a March 2008 and March 2012 rating decision based on new and relevant evidence. An April 2021 rating, decision found that new and relevant evidence had been received to readjudicate claims of service connection for bilateral hearing loss and tinnitus, but denied the claims based on the evidence of record at the time of that decision. In his August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. 38C.F.R. § 20.301. Regarding the claim of service connection for residuals of low back strain, this matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2021 Department of Veterans Affairs (VA) rating decision. The Veteran timely appealed this rating decision to the Board and requested the Board direct review lane option. Therefore, the Board's review is limited to evidence on record at the time of the May 24, 2021 rating decision. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss. The April 2021 rating decision, that confirmed the previous denial of service connection) found that new and relevant evidence had been received to readjudicate the claim. The RO made favorable findings that the evidence shows that a qualifying event, injury, or disease in service, that the military occupational specialty (MOS) of plumber on his DD Form 214 is evidence of exposure to noise in service, and that the Veteran has a diagnosis of bilateral hearing loss disability. The Veteran asserts that his bilateral hearing loss was incurred in service. The Board is bound by the favorable findings in this; therefore, it is not dispute that he has a current hearing loss disability, and that he was exposed to noise in service. His service treatment records (STRs) show he was seen for ear infections in service. On service enlistment examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 0 5 15 LEFT 105 0 10 15 5 In connection with the treatment for otitis in February 1967, he was evaluated for hearing acuity, and his hearing was found to be normal. A history of serous otitis media was noted on service separation examination, and he reported ear trouble in a contemporaneous report of medical history. His ears were normal on clinical evaluation on the service separation examination. On audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 35 10 NR 35 LEFT 10 5 5 NR 5 The Veteran has established service connection for bilateral otitis media with eustachian tube dysfunction. On August 2011 VA audiological examination, the Veteran reported a history of ear infections in service, and exposure to loud noise in service. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 20 LEFT 20 10 15 25 25 Speech audiometry revealed speech recognition ability of 94 percent in each ear. On March 2021 VA audiological examination audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 30 30 LEFT 50 45 60 50 45 Speech audiometry revealed speech recognition ability of 84 percent in each ear. The March 2021 VA audiology examination results reflect a f bilateral hearing loss disability. See 38 C.F.R. § 3.385. The VA examiner opined that the Veteran's bilateral hearing loss is less likely as not caused by or a result of an event in military service. The examiner explained, Veteran's records show no complaint of hearing loss and no standard threshold shifts. Hearing was [within normal limits] bilateral on entrance [examination] and separation [examination] clearly states that he was being treated for serous otitis media, which the Veteran is service connected for ear disease. Any audiogram on the same day of treatment of serous otitis media is null and void, until treatment is complete. Several post service audiograms show hearing to be [within normal limits] bilaterally. His MOS was of moderate probability of hazardous noise exposure and he is not a combat [V]eteran. He reports no noise exposure except the range and boot camp. Veteran states on [examination] today that "up to about two years ago, I could hear pretty fair." There is no nexus. The Board finds the March 2021 VA examiner's opinion inadequate for rating purposes, as the provider did not discuss the audiometry on enlistment and separation, but merely concluded that there were "no standard threshold shifts." In fact, a comparison of the Veteran's March 1964 service entrance and February 1967 service separation audiometry reveals a what appears to be a significant puretone threshold shift at the 1000 and 4000 Hertz frequencies. Thus, the Board finds the March 2021 VA examiner's opinion is based on an inaccurate factual premise and inadequate. Furthermore, the record raises a secondary service connection theory by virtue of the Veteran having established service connection for bilateral otitis media and eustachian tube dysfunction. The record does not include a fully adequate medical opinion addressing whether the Veteran's hearing loss was caused or aggravated by the service-connected ear disability; development for such opinion was necessary. When VA undertakes to provide the Veteran with a medical opinion, it must provide for one that is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Failure to develop for a fully adequate medical opinion upon readjudication is a pre-decisional duty to assist omission that requires remand for correction. 2. Entitlement to service connection for tinnitus is remanded. The Veteran asserts that he has tinnitus that was either incurred in service or is secondary to his service-connected bilateral otitis media with eustachian tube dysfunction. In August 2011, a VA examiner opined that the Veteran's tinnitus is less likely as not caused by or a result of any past history of otitis media with eustachian tube dysfunction. However, the Board finds the August 2011 VA opinion is inadequate because the rationale did not adequately address aggravation. On March 2021 VA examination, the examiner provided what appears to be an adequate opinion regarding direct service connection, but did not address whether the tinnitus is secondary to the service-connected media with eustachian tube dysfunction. Consequently, the record does not include a fully adequate medical opinion in this matter. When VA undertakes to provide the Veteran with a medical opinion, it must provide for one that is adequate. See Barr, 21 Vet. App. at 303. The failure to obtain one is also a pre-decisional duty to assist omission. 3. Entitlement to service connection for residuals of strain injury to lower back pain. The Veteran asserts that he has residuals of strain lower back injury in service. On May 2021 VA examination, the examiner opined the Veteran's claimed back disability is less likely than not caused by his back strain in service. The examiner explained, In review of records, Veteran served from [April 10, 1964] to [March 9, 1967] and sustained a lumbar strain in service. Separation [examination] dated [February 13, 1967] was silent for reports of back pain. [On April 7, 1987], Veteran was noted to have been awarded a settlement from the North Carolina Industrial Commission for an injury he sustained at work [in June 1984] for which he underwent his first surgery in August 1984 for a ruptured disk. The Board finds the May 2021 VA examiner's opinion inadequate for rating purposes. The examiner did not adequately address the Veteran's stated theory of entitlement that he had a residual from back sprain in service disability that pre-existed any superimposed pathology from a June 1984 work related injury (and thus his current back disability is at least in part due to the injury in service. Remand development for a fully adequate medical opinion in this matter is necessary. The matters are REMANDED for the following: 1. Arrange for the Veteran's record to be forwarded to an appropriate clinician (e.g., audiologist ot otologist) for review and a medical advisory opinion regarding the likely etiology of his bilateral hearing loss and tinnitus. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: (a) Identify the likely etiology for the Veteran's bilateral hearing loss disability. Specifically, is it at least as likely as not (a 50% or better probability) that the Veteran's bilateral hearing loss (i) is related directly to his service (was incurred therein) or (ii) was caused or aggravated by [the opinion must address aggravation] his service-connected bilateral otitis media with eustachian tube dysfunction disability? [Note the explanation above regarding the inadequacy of the opinion already in the record.] (b) If the bilateral hearing loss is found to not be directly related to the Veteran's service, or to have been caused or aggravated by his service-connected bilateral otitis media with eustachian tube dysfunction, identify the etiology for the bilateral hearing loss disability that is considered to be more likely, and explain why that is so. (c) Identify the likely etiology for the Veteran's tinnitus. Specifically, is it at least as likely as not that it (i) is related directly to the Veteran's service (was incurred therein) or (ii) was caused or aggravated by [the opinion must address aggravation] his service-connected bilateral otitis media with eustachian tube dysfunction? [Note the explanation above regarding the inadequacy of the opinion already in the record.] (d) If tinnitus is found to not be directly related to the Veteran's service, or to have been caused or aggravated by his service-connected bilateral otitis media with eustachian tube dysfunction, identify the etiology for the tinnitus that is considered to be more likely, and explain why that is so. [The consulting provider is reminded to address both direct and secondary service connection as well as discuss the significance of the audiometry on service separation.] The examiner must include rationale with all opinions provided, citing to supporting factual date and medical principles as deemed appropriate. 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and a medical advisory opinion regarding the likely etiology of his lumbar degenerative arthritis, intervertebral disc syndrome, and spinal fusion disability. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: (a) Identify the likely etiology for each back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is directly related to (was first manifested in, or is otherwise etiologically related to) the Veteran's service/events therein (versus any post-service injuries, such as work-related back injuries)? The rationale for this opinion must address: (i) The Veteran's STRs documenting back complaints and treatment, including for lumbar strain, in service. (ii) Post-service treatment records documenting work-related injuries/complaints, including the April 1987 notation that he was awarded a settlement from the North Carolina Industrial Commission for an injury he sustained at work in June 1984. (iii) Address the argument that he had an ongoing back disability following the strain in service that pre-existed the post service injury and in part his current disability is related to that injury. (b) If a back disability entity diagnosed is found to not be etiologically related to the Veteran's service and back injury therein, identify the etiology that IS considered to be more likely (and explain in detail why that is so). The examiner must include rationale with all opinions, citing to supporting factual date and medical principles as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.