Citation Nr: 21072608 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-08 548 DATE: December 3, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1977. In December 2021, the Veteran and his wife testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. 1. Entitlement to service connection for bilateral hearing loss is remanded. Upon review of the claims file, the Board finds a remand is warranted regarding the claim for service connection for bilateral hearing loss. Specifically, the claim requires a remand to obtain a new VA examination in order to determine the whether the Veteran has hearing loss for VA purposes. The Veteran asserted that he has bilateral hearing loss related to noise trauma (weapons fire and explosives). See March 2019 VA Form 9 (stating "I was exposed to constant severe noise [gren[]ades, setting up boobie traps, ect] which I feel is directly related to my current day hearing loss.") Notably, a May 2015 VA examiner noted the Veteran's military occupational specialty (MOS) was infantry and was associated with high probability of noise exposure from gunfire, grenades, and other weapons. See May 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). However, the examiner noted but the findings shown during that examination did not meet VA's definition for a hearing loss disability under 38 C.F.R. § 3.385. During the December 2021 Board hearing, the Veteran provided testimony that his hearing loss has gradually worsened since the May 2015 VA examination. Specifically, the Veteran and his wife testified that the Veteran's hearing has significantly declined as reflected by more wax build-up in his ear, and decreased ability to hear the television and his wife when she speaks. The Veteran also submitted an article during the hearing regarding the association of noise exposure with gradual loss of hearing. The Board also notes that the Veteran complained of problems with hearing in his right ear in May 2017. See May 2017 VA Addendum Note in CAPRI received June 2018. Accordingly, as the Veteran has reported symptoms of hearing loss and the evidence shows there may now be hearing loss for VA purposes, a remand is required for a current examination. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Washington VA Medical Center (VAMC) and Columbia, SC, VAMC to include the Sumpter Community Based Outpatient Clinic (CBOC), and that records dated through November 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from November 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at Washington VAMC, Columbia SC VAMC, and Sumpter CBOC. 2. Schedule the Veteran for a VA audiological examination to determine whether he currently has hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. All tests and studies deemed appropriate by the examiner must be conducted. After performing any required test, if necessary, and reviewing the entire record, the examiner should provide an opinion responding to the following: 3. Whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's bilateral hearing loss is related to service, to include his conceded noise exposure during active service? The examiner should note that the Veteran's exposure to military noise has been conceded. The examiner must also consider the Veteran's statements regarding onset and continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In rendering his or her opinion, the examiner should address the article submitted by the Veteran regarding the association of noise exposure with gradual loss of hearing and state basis for agreement or disagreement with article. 4. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss was caused by the Veteran's service-connected tinnitus; or 5. Whether it is at least likely as not that the Veteran's hearing loss disability underwent any incremental increase (aggravated) in disability, regardless of its permanence by the Veteran's service-connected tinnitus? 6. Whether it is at least as likely as not that the Veteran's service-connected tinnitus is a symptom of hearing loss? The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The examination report must include a complete rationale for all opinions expressed. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the 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. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.