Citation Nr: 21075405 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-35 488A DATE: December 20, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for upper respiratory infections, to include strep throat, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. These issues were previously before the Board, most recently in June 2021, when remanded for further development. 1. Service connection for bilateral hearing loss is remanded. The September 2021 VA examination is inadequate because it was based on an inaccurate factual background. Once VA undertakes to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner opined that the Veteran's hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The VA examiner explained, in part, that an "Exit exam was performed on 4/24/1985 and also revealed normal hearing thresholds in the right ear with a 45dB loss at 3k Hz" and relied on this examination in finding that "No significant shifts in hearing were noted during military service." This, however, could not have been the Veteran's exit examination because the Veteran continued to serve until July 1986, 14 months later. During the intervening time, the Veteran sought treatment for an ear ache and was referred for an ear cleaning. The September 2021 VA nexus opinions therefore rely on an inaccurate factual premise and are therefore inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("A medical opinion based on an inaccurate factual premise has no probative value."); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). New nexus opinions are warranted. 2. Service connection for upper respiratory infections, to include strep throat, is remanded. The September 2021 VA examination is inadequate because it does not consider all the relevant evidence of record. Once VA undertakes to provide an examination, it must provide an adequate one. Barr, 21 Vet. App. at 311. In September 2021, a VA examiner found that the Veteran did not currently have a respiratory condition. The VA examiner relied, in part, on negative findings during the day of the examination. The opinion, however, is inadequate because it does not reflect consideration of all the relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). In August 2019, the Veteran testified to experiencing chronic problems with throat and upper respiratory infections regularly ever since service. A review of the record showed that the Veteran was diagnosed by VA health care providers with a viral upper respiratory infection in December 2017 and reported cold or flu like symptoms in May 2020. A new VA medical opinion addressing this evidence is warranted. The matters are REMANDED for the following actions: 1. The Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand order. 2. Return the claims file to the examiner who conducted the September 2021 VA audiological examination and request that they prepare an addendum to the examination report which addresses the questions presented below. If the examiner is unavailable, arrange to obtain the requested opinions from a suitably qualified health care professional. Schedule the Veteran for a VA examination if needed to answer the following questions. The examiner must review the claims file, including a copy of this remand order. The examiner is asked to provide a response to the following: (a.) Is the Veteran's bilateral hearing loss at least as likely as not related to service? (b.) Did the Veteran's right ear hearing loss, which had existed prior to service, at least as likely as not increase in severity during service? (c.) If the answer to (b.) is positive, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? Inform the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as post-service symptoms. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Return the claims file to the examiner who conducted the September 2021 VA respiratory examination and request that they prepare an addendum to the examination report which addresses the questions presented below. If the examiner is unavailable, arrange to obtain the requested opinions from a suitably qualified health care professional. Schedule the Veteran for a VA examination if needed to answer the following questions. The examiner must review the claims file, including a copy of this remand order. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's upper respiratory infection, to include strep throat, is related to service? Inform the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Provide a rationale to support the opinion. (Continued on the next page) In providing the requested opinion, consider the Veteran's description of in-service injury and symptoms as well as his post-service symptoms. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.