Citation Nr: 21006941 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-10 498 DATE: February 8, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from July 1952 to June 1977. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss and tinnitus. The Veteran filed a timely notice of disagreement received by VA in August 2017. In December 2017, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in January 2018. In a June 2018 decision, the Board denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board’s June 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in March 2020, the Veteran’s then-attorney and VA’s General Counsel filed a Joint Motion for Remand. In a March 2020 order, the Court granted the motion, vacated the Board’s June 2018 decision, and remanded the matter to the Board for action consistent with the Joint Motion. In August 2020 the Board remanded the matter to the RO for further development. While the matter was in remand status, in a December 2020 rating decision, the RO granted service connection for tinnitus and assigned an initial 10 percent rating, effective March 27, 2017. The grant of service connection for tinnitus constitutes a full award of the benefit sought on appeal with respect to that claim. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). 1. Entitlement to service connection for bilateral hearing loss. In the March 2020 Joint Motion, the parties agreed that a June 2017 VA audiology examination was inadequate because the examiner failed to explain “how she found [the Veteran’s] hearing to be normal in the right ear at separation when he had elevated puretone thresholds in two frequencies at separation.” See McKinney v. McDonald, 28 Vet. App. 15, 24 (2016) (recognizing “that, on an audiometric test, puretone thresholds above 20dB may constitute hearing loss, even though such hearing loss may not constitute a ‘disability’ under [38 C.F.R.] § 3.385 for VA benefits purposes”) (citing Hensley v. Brown, 5 Vet. App. 155, 157 (1993)). The Board notes that audiometric testing at the Veteran’s November 1976 separation examination revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 5 15 25 25 20 LEFT 5 5 10 10 10 In the March 2020 Joint Motion, the parties further agreed that the June 2017 VA examiner failed to address puretone threshold shifts during service in the left ear, as documented on June 1971 and November 1971 audiometric tests. In August 2020, the Board remanded the matter to obtain an addendum medical opinion. The Veteran underwent a VA medical examination in November 2020. After examining the Veteran and reviewing the record, the examiner concluded that it was less likely than not that the Veteran’s current hearing loss had been incurred in service because the in-service threshold shifts were not permanent and because the audiometric testing conducted at separation showed “hearing thresholds that are considered to be within the normal limits bilaterally.” The Board finds that the November 2020 VA medical opinion is inadequate. The examiner again failed to explain why the 25 decibel thresholds at 2000 and 3000 Hertz in the right ear at separation were normal when “puretone thresholds above 20dB may constitute hearing loss, even though such hearing loss may not constitute a ‘disability’ under [38 C.F.R.] § 3.385.” McKinney, 28 Vet. App. at 23. In addition, although the VA examiner referenced the audiometric data showing shifts in left ear puretone thresholds on June 1971 and November 1971 audiograms, when compared to earlier audiometric tests, the examiner provided only a conclusion that the Veteran had no permanent threshold shifts but did not provide a rationale. While the Board regrets further delay, remand is required for an addendum medical opinion for full compliance with the Board’s previous remand instructions. See Stegall v. West, 11 Vet. App. 268, 270–71 (1998). In addition, the record on appeal may be incomplete. In the Veteran’s brief before the Court, he noted that the record contained an October 2013 administrative note from the Loma Linda VA Healthcare System indicating that a document had been scanned into VA’s VistA Imaging System, but was not included in the record on appeal. There is no indication as to the content of this document. Nonetheless, the U.S. Court of Appeals for the Federal Circuit has held that for VA records, VA’s duty to assist in obtaining records is triggered if the claimant merely identifies VA medical records. There is no requirement that the Veteran show that such VA records are relevant. Sullivan v. McDonald, 815 F.3d 786, 790-91 (Fed. Cir. 2016); Jones v. Wilkie, 918 F. 3d 922 (Fed. Cir. 2019). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, particularly the VistA Imaging record referenced in the October 2013 VA administrative note. 2. Provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining an addendum medical opinion on the etiology of the Veteran’s current bilateral hearing loss. The need for an examination is left to the discretion of the clinician. The clinician should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its inception during the Veteran’s active service or is otherwise causally related to his service? In providing the rationale, the clinician must address the following: (a) The results of audiometric testing at the Veteran’s November 1976 separation examination, particularly the puretone thresholds of 25 decibels at 2000 and 3000 Hertz in the right ear. The clinician is advised that “puretone thresholds above 20dB may constitute hearing loss, even though such hearing loss may not constitute a ‘disability’ under [38 C.F.R.] § 3.385.” McKinney, 28 Vet. App. at 23. (b) Threshold shifts in the left ear documented on June 1971 and November 1971 audiograms, when compared to earlier in-service audiometric tests. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.