Citation Nr: 21077618 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-11 340 DATE: December 30, 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, the appellant in this matter, served on active duty from August 1977 to January 1979, in November 2001, from August 2005 to October 2005, and from May 2007 to July 2007, with additional service in the Ohio Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A Board video-conference hearing was held in July 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Veteran contends that he has bilateral hearing loss and tinnitus, which are related to his military occupational specialty (MOS) as an aircraft armament systems specialist. The Board finds that a remand is necessary to provide the Veteran another VA examination. The Veteran was provided a VA examination and medical opinion in December 2015. However, the opinion is inadequate as it was based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Notably, the examiner stated the Veteran reported one period of active duty between 1977 and 1979, when in fact the Veteran had several periods of service. Moreover, the examiner's opinion was based exclusively on the lack of objective evidence of hearing loss during that specific period of service and did not address lay statements regarding military noise exposure in service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). The Board also recognizes the Veteran's representative asserted that the tinnitus opinion was inadequate because it failed to consider delayed onset of the disability. See July 2021 Hearing Transcript, page 3. In addition, in his July 2021 Board hearing, the Veteran testified that his hearing had gotten worse since his previous VA examination. He is competent to report observable symptoms of hearing loss. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, there is a possibility that his hearing loss meets the criteria to establish a disability under VA regulations. In the context of a claim for service connection, consideration of whether a contemporaneous examination is required only applies in limited circumstances when the service-connected determination is based on the level of impairment of a disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). As in Palczewski, service connection for hearing loss is one of those limited circumstances. Reexamination is required when the "evidence indicates that there has been a material change in a disability or that the current rating may be incorrect." 38 C.F.R. § 3.327(a). Additionally, the Veteran must provide some evidence that there has been a material change in his or her disability. Glover v. West, 185 F.3d 1328, 1333 (Fed. Cir. 1999). In this case, given the Veteran's testimony that he believes his hearing loss has worsened since last examined, the Board finds that re-examination is necessary. In light of the Board's decision herein, the issues of entitlement to service connection for tinnitus is inextricably intertwined with the Board's decision herein and the issue being remanded, and adjudication of the issue must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss disability is a result of the Veteran's military service, to include his military noise exposure associated with his MOS as an aircraft armaments systems specialist. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the tinnitus began in service, was continuous since service, or manifested within 1 year of service, or is otherwise a result of the Veteran's military service, to include his military noise exposure associated with his MOS as an aircraft armaments systems specialist. In doing so, specifically address: (i) the audiograms and hearing conservation data within the STRs; (ii) the Veteran's lay reports, including those in his July 2021 hearing transcript, describing the onset of his hearing loss and tinnitus; and (iii) the December 2021 private medical opinion from Dr. C.S. A complete rationale for all proffered opinions must be provided. 3. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.