Citation Nr: 21007204 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-41 125 DATE: February 9, 2021 REMANDED Entitlement to service connection for bilateral hearing loss to include as secondary to service-connected tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to March 1980. By way of background, an August 2013 rating decision, and subsequent July 2014 Statement of the Case (SOC), denied entitlement to service connection for bilateral hearing loss on the basis that the Veteran did not have a diagnosis of hearing loss for VA purposes and because the medical evidence did not show that the Veteran’s condition was caused by his military service. In November 2014, the Veteran submitted a new claim for service connection for bilateral hearing loss and in a May 2015 rating decision, the RO declined to reopen the Veteran’s claim on the basis that new and material evidence had not been received since the August 2013 denial. The Veteran appealed that decision to the Board. In a February 2019 decision, the Board also found that new and material evidence had not been received to reopen the claim of service connection for bilateral hearing loss. The Veteran subsequently appealed the February 2019 Board decision to the United States Court of Appeals for Veteran’s Claims (Court). In April 2020, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the February 2019 Board decision insofar as it found that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss. In the April 2020 JMPR, the parties (the Veteran and the Secretary of VA) agreed that the Board erred by not addressing a private January 2019 audiological test. In a September 2020 Board decision, the issue was reopened and remanded for a new VA audiology examination. The issue has been returned to the Board for appellate review. Entitlement to service connection for bilateral hearing loss to include as secondary service-connected tinnitus is remanded. The Veteran asserts that he has bilateral hearing loss as a result of noise exposure in service. His military occupational specialty was a police officer. The Veteran reports that he was routinely exposed to gunfire, artillery, and aircraft flying over the tower. Post-service, the Veteran was subjected to occupational noise while working construction, in manufacturing, and at a tobacco factory. The November 2020 VA examiner opined it was less likely than not the Veteran’s diagnosed hearing loss was incurred in or caused by the claimed in-service injury, event or illness. In the rationale the examiner stated it would be inappropriate to render an opinion with the information at hand at this time. The reasoning provided was that there were multiple indicators of non-organic hearing loss present on the exam including positive Stenger, bone conduction thresholds below the air conduction thresholds, the presence of acoustic reflexes when there is no response at 100 dB and repeating single syllable for SRT words. The examiner provided the same opinion and rationale for secondary service connection. Unfortunately, as the examiner was unable to provide an opinion at the time of the November 2020 examination, the Board finds the examination to be inadequate. Accordingly, the Board finds that a remand is necessary to ascertain whether the Veteran’s hearing loss is etiologically related to his military noise exposure and/or caused by or aggravated by his service-connected tinnitus disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiology examination with a different examiner than the November 2020 examiner to determine the nature and etiology of the claimed hearing loss. The electronic claims file must be made accessible to and be reviewed by the VA examiner. Audiometric testing should be performed. The examiner is requested to: a) Opine whether it is at least as likely as not (50 percent probability or greater) any diagnosed hearing loss is etiologically related to service. b) Opine whether it is at least as likely as not (50 percent probability or greater) any diagnosed hearing loss is caused by or aggravated by service-connected tinnitus disability. 2.Thereafter, readjudicate the claim. If the decision remains adverse to the Veteran, issue the Veteran and his representative a supplemental statement of the case. Thereafter, return the case to the Board, if otherwise in order. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.