Citation Nr: A21020131 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200427-79780 DATE: December 16, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1955 to July 1975. In September 2020, the Board issued a decision that denied entitlement to service connection for hearing loss, granted service connection for tinnitus, and remanded the claim for entitlement to service connection for obstructive sleep apnea. Pursuant to a Joint Motion for Partial Remand (JMPR), in June 2021, the U. S. Court of Appeals for Veterans Claims (Court) remanded the issue of entitlement to service connection for hearing loss. The appeal has been returned to the Board. Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A(f)(2)(A);38 C.F.R. § 20.802(a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a). Entitlement to service connection for bilateral hearing loss is remanded. In the June 2021 JMPR, it was noted that in June 2018 the Veteran submitted a medical treatise article and in April 2019 the Veteran's then representative submitted arguments which included reference to published medical research. The Board did not consider this evidence. Additionally, the Board, in part, relied on February 2015 and September 2019 VA medical opinions. The parties agreed that these opinions are inadequate because the VA examiners based the negative nexus opinions on inadequate rationales as they relied on inaccurate facts of the Veteran's hearing in service. Specifically, STRs show that the Veteran had some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). As this constitutes a pre-decisional duty to assist error, remand is necessary for the AOJ to attempt to obtain the missing medical records. See 38 C.F.R. § 3.159 (c)(1); 38 U.S.C. § 5103A(b). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician to determine the etiology of the Veteran's bilateral hearing loss. A new VA examination is not warranted unless deemed so the by the VA examiner. The claims filed should be made available to and reviewed by the VA examiner. The VA examiner is asked to determine the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss arose during service or was caused by conceded noise exposure in service? The audiologist must address the in-service audiograms from March 1972 and May 1975. The audiologist is further advised that VA considers the threshold for "normal" hearing to be between zero and 20 decibels, with higher threshold levels indicating some degree of hearing loss. Therefore, the March 1972 and May 1975 audiograms show some degree of hearing loss, bilaterally. The examiner must discuss the article submitted by the Veteran in June 2018, "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" and medical research referenced in the Veteran's representative's April 2019 argument. A complete rationale must be provided. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.