Citation Nr: 21077336 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-06 062 DATE: December 29, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1986 to April 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2021, the Board remanded the claim for further development. During remand status, an August 2021 rating decision granted service connection for tinnitus. The Board finds that the Veteran's claimed symptoms for his disability are encompassed by the RO's grant. In this regard, at the August 2021 VA examination, the Veteran reported tinnitus, described as humming. The Veteran's tinnitus is rated pursuant to Diagnostic Code 6260, which considers recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. See 38 C.F.R. § 4.87. Thus, as the RO granted in full the benefits sought by the Veteran in this matter, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The RO, additionally, sent to the Veteran an August 2021 supplemental statement of the case that addressed the remaining above issue on appeal. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran, and his representative, contends that his hearing loss stems from in-service noise exposure. In this regard, the Veteran argues that although his military occupational specialty was as a yeoman in human resources, his other duties exposed him to loud acoustic trauma while in service. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. An August 2021 VA medical opinion reflects the conclusion that the Veteran's bilateral hearing loss disability was less likely than not incurred in or caused by an in-service injury, event or illness. In support of the conclusion, the opinion found that [t]here were no significant threshold shifts (worse) greater than measurement variability at any test frequency susceptible to noise injury when the separation audiogram was compared to the enlistment audiogram. There is no evidence of noise injury resulting in hearing loss while in the service. The Board finds the VA medical opinion inadequate for adjudicative purposes as it is internally inconsistent with the other evidence of record. In this regard, the Board observes that in August 2021 the same clinician, in concluding the Veteran's tinnitus as related to service, found that: [a]lthough there were no significant shifts in hearing thresholds when the separation audiogram was compared to the enlistment audiogram, there is evidence of significant shifts (worse) in the left ear 6kHz threshold in 1987 and 1988 that may suggest TTS/early effects of noise exposure/evidence of possible noise injury while in service. In this case, the clinician found "no significant threshold shifts (worse)" in one opinion, and "significant shifts (worse) in the left ear" for the other opinion. Further, one opinion notes "no evidence of noise injury resulting in hearing loss while in the service" and the other notes "noise exposure/evidence of possible noise injury while in service." These findings are, on their face, clearly inconsistent with the reached conclusion. Jones v. Shinseki, 23 Vet. App. 382, 392 (2010) (finding that the Board clearly erred in relying on an internally inconsistent medical opinion that "f[e]ll[ ] short of setting forth any clear conclusions"); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (holding that, although a medical examination report need not "explicitly lay out the examiner's journey from the facts to a conclusion" to be adequate, the Board must be able to discern the examiner's reasoning). Here, the Board is unable to discern the clinician's reasoning in finding no significant threshold shifts in one opinion and significant threshold shifts in the other opinion on almost identical matters. Further, the Board notes that 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). Moreover, certain chronic diseases, such as organic diseases of the nervous system (e.g., hearing loss), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). In this regard, the Veteran testified that he experienced hearing loss symptoms after service. See Hearing Transcript at 9 (December 2019). The opinion, however, does not reveal a rationale or explanation discounting the Veteran's competent observations; rather, as evidenced in the opinion, the clinician seems to have, mostly, relied on a 2006 Institute of Medicine study without considering the Veteran's testimony. 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 clinician is not required to accept the Veteran's theory that his military service caused his current hearing loss disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusions. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Given the above, the Board finds that remand is required to obtain an adequate VA medical opinion in this matter. Where VA provides an examination or obtains an opinion, it must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In remanding this matter, 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 matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral hearing loss disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should reflect consideration of the pertinent evidence of record (e.g., the Veteran's documented relevant history and assertions). The clinician is not required to accept the Veteran's theory that his military service caused his disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Whether the Veteran's bilateral 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) is related to an in-service injury, event, or disease. Explain. 2. Ensure that the 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. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.