Citation Nr: A21020274 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 201007-111098 DATE: December 20, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs' (VA's) decision on their claim to seek review. The Board is honoring the Veteran's choice to participate in VA's test program, RAMP, the Rapid Appeals Modernization Program. The Veteran served on active duty from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2020, the Veteran selected the Higher-Level Review lane. The September 2020 rating decision also denied service connection for bilateral hearing loss and service connection for tinnitus. In October 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) to the September 2020 rating decision, and elected the AMA modernized review system, requesting the option for direct review by a Veterans Law Judge with the Board of Veterans' Appeal (Board) (placing the case on the Board's Direct Review docket). Therefore, the Board may consider only the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to service connection for bilateral hearing loss is remanded 2. Entitlement to service connection for tinnitus is remanded Unfortunately, a remand is required in this case to correct a duty to assist error that occurred prior to the March 2020 rating decision on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. In March 2020 the Veteran underwent a VA examination for hearing loss and tinnitus. The VA audiogram revealed bilateral ear hearing loss per 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with mixed hearing loss of the bilateral ears. The VA examiner opined that the Veteran's bilateral hearing loss was less likely not caused by or a result of military service as audiometric testing at the time of enlistment and discharge revealed normal hearing of the bilateral ears with no changes in hearing thresholds/significant thresholds shifts compared to the entrance examination. The rationale deficiency with the March 2020 VA audiological examination is that the examiner relied on the absence of hearing loss disability in service for the negative service connection opinion. The Board notes that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for a hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection is warranted if all of the evidence, including that pertinent to service, reflects that current hearing loss is related to in-service noise exposure or anything else in service. The negative opinion is inadequate because the examiner appeared to have relied solely on the lack of hearing loss during service. As for the Veteran's tinnitus, the Board found inconsistencies in the March 2020 VA examination report. The examiner noted that the Veteran reported onset of his bilateral hearing loss and tinnitus 20 years earlier; however, the examiner later noted that the Veteran reported onset 8 years earlier. The negative opinion is inadequate because the examiner relied solely on the difference of time of onset of hearing loss and tinnitus when the Veteran asserted during the examination that the onset of hearing loss and tinnitus was "20 years ago." Based on the above, the Board finds that a medical addendum should be provided. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion pertaining to the Veteran's bilateral hearing loss and tinnitus from the March 2020 examiner, or a similarly qualified individual. After a review of the record, the examiner must offer the following opinions: (a.) Whether the appellant's bilateral hearing loss is at least as likely as not (50 percent probability or more) incurred in or is otherwise etiologically related to a qualifying period of reserve service, to include in-service noise exposure. (b.) Whether the appellant's tinnitus is at least as likely as not (50 percent probability or more) incurred in or is otherwise etiologically related to a qualifying period of reserve service, to include in-service noise exposure. The examiner must address the Veteran's assertions of diminished hearing loss and tinnitus since service, to include the Veteran's in-service military occupational specialty and the corresponding level of noise exposure. A complete rationale must be provided. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: (c.) The Veteran's numerous assertions of diminished hearing loss and tinnitus since service due to tank and cannon fire, as well as artillery fire without hearing protection. (d.) The Veteran's lack of recreational noise exposure In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.