Citation Nr: A21017374 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 190823-27676 DATE: October 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 in the United States Army from June 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This rating decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In August 2019, the Veteran submitted his Decision Review Request (Board Appeal), selecting direct review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In an April 2020 decision, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the denials to the Court of Appeals for Veterans Claims (Court). In May 2021, the parties agreed to a Joint Motion for Remand (JMR). The JMR formally requested that the Court vacate the Board's April 2020 denials and remand the denials to the Board for corrective measures. In May 2021, the Court granted the JMR. Pursuant to the JMR, the Veteran's claims are once again before the Board for further appellate action. Under the AMA framework, when there are pre-decisional duty-to-assist errors, it is permissible for the Board to have them corrected before deciding the claims on appeal. The Veteran's appeals as to the issues of service connection for PTSD are remanded to correct duty-to-assist errors that occurred prior to the June 2019 rating decision on appeal. 1. Entitlement to service connection for bilateral hearing loss is remanded. In an April 2020 decision, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the denial to the Court. In May 2021, the parties agreed to a JMR. The JMR formally requested that the Court vacate the Board's April 2020 denial and remand the denial to the Board for corrective measures. In May 2021, the Court granted the JMR. The JMR found a June 2019 VA examination and opinion to be inadequate and directed the Board to obtain a new hearing loss examination and opinion. The parties found the examination to be inadequate because the examiner provided a negative nexus opinion because there was no entrance examination and the exit examination revealed that the Veteran had a positive Stenger test; however, the examiner "did not acknowledge or discuss the positive Stenger test in the June 2019 audiological examination or reconcile that finding with the notation that the audiological examinations are valid for rating purposes." The Board notes from medical authority that a Stenger test refers to an examination where the examinee is thought to be malingering during portions of the examination because of the presence of results on the examination that are inconsistent with other findings and observations. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1926 (32d ed. 2012). The parties to the JMR also found the June 2019 examination to be inadequate because the examiner failed to provide any discussion reconciling the Veteran's statements regarding the onset of his hearing loss. The Veteran reported to the examiner that his hearing loss started "prior to going on his deployment." A January 1971 medical evaluation board narrative summary reflects that the Veteran had a profile for a hearing deficit in his left ear. A January 1972 service treatment record reported that the Veteran had complained of reduced hearing in the right ear for two years and given a hearing profile. During the June 2019 examination, the Veteran reported that he was exposed to excessive in-service noise exposure, such as noise from compressors. The examiner reported that the Veteran served as a quartermaster and chemical equipment repairer, which had a moderate probability for hazardous noise exposure. However, the Veteran's DD Form 214 reported the Veteran's military occupational specialty was a General Construction Machine Operator, which had a high probability for hazardous noise exposure. Thus, the Board finds the June 2019 examiner's opinion was also inadequate because the examiner's opinion was at least based in part on her conclusion that the Veteran's military duties had a moderate probability for hazardous noise exposure, rather than a high probability. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). On remand, the Board shall ensure that an adequate examination is provided with respect to the Veteran's hearing loss, which includes a consideration of the in-service reports of hearing loss. 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to service connection for tinnitus is remanded. In an April 2020 decision, the Board denied entitlement to service connection for tinnitus. The Veteran appealed the denial to the Court. In May 2021, the parties agreed to a JMR. The JMR formally requested that the Court vacate the Board's April 2020 denial and remand the denial to the Board for corrective measures. In May 2021, the Court granted the JMR. The JMR found the Board's statement of reasons or bases in its April 2020 decision to be inadequate because it failed to address an argument raised in the record regarding whether the Veteran's tinnitus is related to his service-connected diabetes. This statement included a footnote citing to a website from the National Institute of Health and an excerpt from the C&P Medical Electronic Performance Support System on tinnitus asserting that it was known to all VA raters. The June 2019 VA audiologist opined that it was less likely than not (less than 50 percent probability) that the Veteran's claimed tinnitus was caused by or a result of military noise exposure. As rationale, the examiner provided the following: "Veteran denies tinnitus as defined in the Dauman and Tyler (1992) cited in the Tinnitus Handbook (Tyler) and reports transient ear noise that occurs in the general population without auditory damage or pathology. This transient ear noise is not consistent with noise-induced tinnitus and is less likely than not related to military noise exposure." The audiologist's statements in the rationale described above are merely conclusory statements, without any description of what the Veteran experienced or thorough rationale explaining why she concluded that the sensation experienced by Veteran was transient ear noise and was not related to military noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Because these conclusory statements do not permit a fully informed evaluation of the Veteran's claim, the Board finds the examiner's opinion to be inadequate. The Board finds that the June 2019 opinion was also inadequate because the audiologist's opinion was at least based in part on her conclusion that the Veteran's military duties had a moderate probability for hazardous noise exposure, rather than a high probability. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). On remand, the RO must obtain an addendum nexus opinion for tinnitus from the June 2019 VA audiologist, with a supporting rationale that fully explains whether the Veteran has a current diagnosis of tinnitus and takes into consideration that the Veteran's military duties had a high probability for hazardous noise exposure. The examiner should also consider whether the Veteran's service-connected diabetes mellitus caused or aggravated the Veteran's tinnitus. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Return the claims file, including a copy of this remand, to the VA audiologist who conducted the June 2019 examination, or to another appropriate VA audiologist if that individual is unavailable, to provide a new hearing loss examination and etiology opinion. The Veteran's claims file, to include a copy of the remand, must be made available to the audiologist along with any other information the medical professional deems pertinent. (a.) After a review of the claims file, the audiologist should provide an opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss is etiologically related to the Veteran's active service? (b.) The provided examination opinion must reflect consideration of the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions, which includes a consideration of the in-service reports of hearing loss and the Veteran's military duties, which had a high probability for hazardous noise exposure. 2. Return the claims file, including a copy of this remand, to the VA audiologist who conducted the June 2019 tinnitus examination, or to another appropriate VA audiologist if that individual is unavailable, to provide addendum opinions regarding the etiology of the Veteran's claimed tinnitus. The Veteran's claims file, to include a copy of the remand, must be made available to the audiologist along with any other information the medical professional deems pertinent. 3. After a review of the claims file, the audiologist should provide opinions on the following: (a.) Does the Veteran have a current diagnosis of tinnitus? The examiner must provide a thorough explanation for the diagnosis. (b.) If the Veteran has a current diagnosis of tinnitus, the audiologist should provide opinions on the following: (1.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus is etiologically related to the Veteran's active service? (2.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus was caused by the Veteran's service-connected diabetes mellitus? (3.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus was aggravated (any increase in disability beyond the natural progression) by his service-connected diabetes mellitus? (4.) If aggravation is found, the examiner is asked to state the baseline level of severity of his tinnitus before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the tinnitus and what level of increase was due to aggravation from his service-connected diabetes mellitus. 4. The provided opinions must reflect consideration of the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. 5. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.