Citation Nr: 21077024 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-18 791 DATE: December 28, 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 from December 1973 to December 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The record was held open for 60 days to allow for the submission of supporting evidence. The Veteran's representative submitted additional argument on the date of the Board hearing. Thereafter, no additional evidence was received by VA. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. Issues 1&2. The Veteran contends that his hearing loss is due to in-service noise exposure stemming from his duties as an infantryman and wheeled vehicle mechanic. Specifically, the Veteran asserts he suffered acoustic trauma caused by noise from various aircraft and vehicles, tanks, generators, artillery, mortars, machine guns, rifles, and noise in boiler rooms. See VA 21-4138 Statement in Support of Claim (February 2020) & Hearing Transcript at 4 (March 2021). The Veteran testified that his tinnitus symptoms had their onset within the one-year presumptive period following service separation and his hearing loss began several years following service. See Hearing Transcript at 9 (March 2021). The Veteran's representative argues that, contrary to the September 2016 VA examiner's finding that service treatment records (STRs) do not contain evidence of acoustic trauma, the Veteran indeed had a shift in hearing levels based on audiological testing performed at enlistment and separation. It was further argued that the September 2016 opinion failed to consider the Veteran's military occupational specialty (MOS) of infantryman which has a high probability of noise exposure. Lastly, the representative stated the Veteran competently testified that his tinnitus symptoms were noticeable within one year of service separation. See Third Party Correspondence (March 2021). A September 2016 VA examination report reflects diagnoses of sensorineural hearing loss in both ears and tinnitus. The report reflects the Veteran's MOS of infantryman. At the examination, the Veteran reported occasional post-service occupational noise exposure while working in construction (e.g., drywall and painting) and infrequent recreational noise related to hunting/shooting using earplugs. The Veteran reported he had tinnitus symptoms for many years. The medical opinion reflects the conclusion that the Veteran's current bilateral hearing loss and tinnitus disabilities are not at least as likely as not caused by or a result of an event in service. The examiner provided the same rationale regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. It states as follows: STRs show hearing well within normal limits bilaterally at enlistment dated October 1973, on exam dated October 1975, and at separation dated October 1976 with no significant shifts noted. Records are also negative for any reports of ear or hearing problems during service. With no permanent decrease in hearing thresholds observed, there is no objective evidence that acoustic trauma or noise injury occurred during active duty as a result of any military noise exposure to account for the current hearing loss. Per research by the Institute of Medicine (IOM), a permanent shift in hearing thresholds would be observed at the time of the event if acoustic trauma resulted from the noise exposure. Therefore, IOM has determined that delayed onset hearing loss is not a scientifically recognized consequence of acoustic trauma. The VA medical opinion is inadequate for adjudicative purposes, as explained below. First, the opinion largely relied on the absence of documented hearing loss findings and/or complaints in service when it is well-established that the absence of hearing loss at service separation does not foreclose a grant of service connection for subsequently demonstrated hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). See also, Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). In the same vein, it does not provide the Board a reasoned rationale connecting the lack of documented complaints/findings in the Veteran's STRs to the conclusion that the Veteran's current hearing loss and tinnitus disabilities are not related to service. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Second, it does not address the decrease in hearing acuity noted in almost all frequencies at service separation when comparing enlistment audiometric results and separation audiometric resultsor, in other words, whether the shift in hearing acuity represented the onset of hearing loss and later hearing loss disability for VA purposes. In addition, the rationale does not explain or quantify the degree of threshold shift in decibels that constitutes a "significant" threshold shift with respect to hearing acuity or otherwise explain why this examiner found that the shift was not significant. Thus, the clarification is required on this matter. Third, in support of the opinion's rationale, the examiner cited to an IOM study that found the most profound auditory effects of noise exposure occur immediately following exposure which suggests that hearing loss would have an onset during service or would be present at separation if caused by military noise exposure. However, as stated above, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Further, it is noted that in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), in addressing a 2005 IOM study, the Court held that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." Here, the opinion does not acknowledge any contradictory aspects of the IOM report. Moreover, reliance on the absence of medical literature supporting nexus without discussing the specific facts of the Veteran specific facts renders an opinion inadequate. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Fourth, the opinion reflects no meaningful discussion of the Veteran's MOS and various lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). The Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. Here, as previously noted, the Veteran detailed numerous sources of acoustic trauma related to his military duties. Additionally, during an April 2006 VA audiology consult, the Veteran reported longstanding symptoms of hearing loss and tinnitus that gradually worsened over time. He was noted to have a history of military noise exposure to gunfire during various training and firing range exercises and minimal post-service occupational and recreational noise exposure. See CAPRI (July 2016). However, the opinion does not reflect consideration of the Veteran's lay statements. Based on the above insufficiencies, the Board may not rely on the VA medical opinion in its present form and, therefore, finds it inadequate for adjudicative purposes. As such, remand for an addendum opinion is required. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges that in support of his claim, the Veteran submitted a favorable independent medical opinion, dated in February 2020, rendered by a medical doctor who has not provided medical care or treatment to the Veteran. See Medical Treatment Record Government Facility (February 2020). The private medical opinion concluded that the Veteran's tinnitus is at least as likely as not due to and/or related to military acoustic trauma during service. The opinion was predicated on the absence of tinnitus on Veteran's entry into service, the Veteran's reports of noise exposure, trauma, from various vehicles, equipment, and weapons, the lack of routine use of hearing protection, and the Veteran's reports of later developing tinnitus. To support the opinion with reference to various medical literature showing that tinnitus "could" arise in persons without typical cochlear damage, exposure to noise "can induce" tinnitus, and that tinnitus in the military population is greater that in the general public. Unfortunately, in its present form, the opinion is inadequate for adjudicative purposes. First, it does not explain why it is at least as likely as not that the Veteran's tinnitus, which the Veteran reported began after service, is due to in-service noise exposure. While the clinician provides a clear conclusion and supporting data, it does not include a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22Vet. App.295, 301 (2008). Second, it does not discuss the medical literature vis-à-vis facts specific to this Veteran, and explain why the medical literature reference supports that the Veteran's post service development of tinnitus is at least as likely as not linked to his reports of in-service noise exposure. Bailey, 30 Vet. App. 54, 60 (2018). This particularly important given that the medical literature often employed equivocal terms such as "could" or "can." Thus, while the opinion included a clear conclusion, the medical literature relied upon appears to be less than conclusive although portrayed as otherwise by the opinion. Lastly, the Board finds that remand is necessary to obtain potentially relevant outstanding medical records. The VA treatment records in the claims file reflect that the Veteran has non-VA medical providers although it is unclear who they are and for what they treat. Therefore, remand is necessary to afford the Veteran an opportunity to authorize VA to obtain any relevant outstanding private treatment records.38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Further, the Veteran testified that he first obtain VA medical care in the middle 1980's, around 1985/86. See Hearing Transcript at 10. In remanding these matters, 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. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private medical providers seen for signs and symptoms for his hearing loss and tinnitus. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's complete VA treatment records dated from approximately 1985 to 2016, and from January 2020 to the Present. It is noted that a September 2012 VA treatment note (Muncie VA Clinic) reflects that the Veteran presented for urgent care and that he was "not in NIHCS system." 3. Obtain an addendum opinion from an appropriate clinician to address the nature and etiology of the Veteran's bilateral hearing loss and tinnitus disabilities. The entire claims file, to include a copy of this REMAND, must be made available to and reviewed by the clinician. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, including any relevant medical literature on delayed onset hearing loss and/or tinnitus, relied upon in reaching the conclusions. The clinician must opine on: (a) Whether any hearing loss disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) delayed onset hearing loss is otherwise etiologically related to in-service noise exposure to include the Veteran's report of acoustic trauma. Explain and address what constitutes a "significant" hearing threshold shift with respect to hearing acuity or whether the Veteran's threshold shift as shown comparing his service entrance and separation examinations indicates onset of hearing loss due to noise exposure which later progressed to a hearing loss disability for VA purposes as defined at 38 C.F.R. § 3.385. (b) Whether the Veteran's tinnitus is proximately due to his reported in-service noise exposure to include the Veteran's report of acoustic trauma. Explain. The opinions should reflect consideration of the Veteran's documented relevant history and assertions, to include that his hearing loss and tinnitus (even if it is of delayed onset) are related to in-service noise exposure from airplanes, helicopters, vehicles, tanks, generators, artillery, mortars, machine guns, rifles, and noise in boiler rooms, while performing his duties as an infantryman and wheeled mechanic repairman. See generally Hearing Transcript (March 2021). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate opinion may not be predicated solely on general medical literature without discussing the specific facts pertaining to the Veteran. NOTE (3): If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the clinician, then the clinician must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why). 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.