Citation Nr: 21073087 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-24 739A DATE: December 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a stomach disability other than constipation is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a low back disability other than chronic lumbosacral strain is remanded. REASONS FOR REMAND The Veteran had active service from June 1976 to October 1976, with additional service in the Army National Guard of Louisiana. These matters are before the Board of Veterans' Appeals (Board) on appeal of May 2010 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in March 2018 and September 2018. Those remands also included the issues of entitlement to service connection for a left leg condition and entitlement to service connection for a right leg condition. Those issues were granted in full in a February 2020 rating decision and are therefore no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA examination as to his claimed hearing loss and tinnitus in December 2019. Testing conducted at that examination revealed a current bilateral hearing loss disability under 38 C.F.R. § 3.385. The examiner opined that the Veteran's current bilateral hearing loss and tinnitus are less likely than not caused by an in-service event. Regarding the current bilateral hearing loss, the examiner acknowledged that the Veteran "was exposed to significant noise and his MOS of truck driver was consistent with moderate risk of noise exposure", but explained that no enlistment examination from 1976 was in the claims file and a reenlistment audiogram in May 1985 revealed a significant hearing loss in both ears, but an audiogram in June 1989 revealed normal hearing in both ears. She concluded that, considering that the June 1989 examination showed that the Veteran's hearing was within normal limits, "there is no nexus formed linking the Veteran's hearing loss today with military noise exposure." Regarding the current tinnitus, the examiner stated, "there is no evidence of noise trauma while on active duty military service. There are no complaints of tinnitus during service. There were no complaints of hearing loss or tinnitus until many years after service while being seen at the local VA. There is therefore no nexus established to link the tinnitus to military noise exposure." The Board finds that the examiner's opinions are inadequate for decision-making purposes because they contain conflicting statements regarding the Veteran's in-service noise exposure. Specifically, the examiner states that the Veteran had significant noise exposure but then states that there is no evidence of in-service noise trauma. The opinions also do not adequately address whether the current hearing loss disability and/or tinnitus may be the delayed result of in-service noise exposure. The issue must therefore be remanded to obtain an addendum opinion. 3. Entitlement to service connection for a stomach disability other than constipation is remanded. In relevant part, the prior Board remands directed the agency of original jurisdiction (AOJ) to obtain the Veteran's outstanding VA treatment records and then readjudicate the appeal, to include by issuing a supplemental statement of the case if any benefit sought remained denied. On remand, the AOJ issued a supplemental statement of the case in April 2020. However, that supplemental statement of the case does not include the issue of entitlement to service connection a stomach disability other than constipation. In addition, the issue has not been granted in full through another action. Therefore, the issue must be remanded so that it may be adjudicated by the AOJ in view of the expanded record in compliance with the prior Board remands. 4. Entitlement to service connection for a right wrist disability is remanded. 5. Entitlement to service connection for a low back disability other than chronic lumbosacral strain is remanded. Additional evidence, to include VA treatment records, have been received since the April 2020 supplemental statement of the case. Some of those records are relevant to the issues of entitlement to service connection for a right wrist disability and entitlement to service connection for a low back disability other than chronic lumbosacral strain. In October 2021, VA sent the Veteran and his representative a letter asking whether the Veteran would like to waive his right to have the AOJ review that additional evidence in the first instance. The letter informed the Veteran that if he did not respond within 45 days from the date of the letter, the Board would assume that he does not wish to have the Board decide the appeal at this time and would remand the appeal for initial AOJ review. More than 45 days have elapsed since the date of the October 2021 letter and the Veteran has not provided a response. Therefore, the Board will assume that he does not waive initial AOJ consideration of the additional evidence. The issues accordingly must be remanded so that the AOJ can consider the additional evidence in the first instance. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss and/or tinnitus is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include in-service exposure to noise from firearms and trucks. For purposes of providing the requested opinion, the examination must assume that the Veteran was exposed to noise from firearms and trucks during his active service. If the examiner finds that that exposure does not constitute noise trauma, then he or she must reconcile that finding with the December 2019 VA examiner's statement that that the Veteran was exposed to "significant noise" in service and that his military occupational specialty of truck driver was "consistent with moderate risk of noise exposure". The examiner must note that, under applicable law, the absence of in-service evidence of a hearing disability is not always dispositive of a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the examiner must explicitly address whether the current hearing loss disability and/or tinnitus may be the delayed result of in-service noise exposure. A statement to the effect that the Veteran had normal hearing at separation from service or at any other time since separation from service does not sufficiently address this aspect of the issue. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent adjudications of the issues remaining on appeal, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.