Citation Nr: 21008285 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 180822-1185 DATE: February 16, 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 served on active duty from January 1971 to February 1974. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the AMA framework. Procedurally, the Veteran selected the Higher-Level review lane when he opted into the AMA review system by submitting a RAMP election form in September 2018. Accordingly, the December 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this December 2018 RAMP rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). An October 2020 Court Order granted a Joint Motion for Remand (JMR) to vacate the Board’s November 2019 decision. The parties agreed that remand was warranted in part because the Board erred when it failed to ensure that VA satisfied its duty to assist the Appellant by providing an adequate VA examination for his hearing loss and tinnitus. The evidentiary record includes all evidence of record prior to the date the RAMP opt-in was received by VA, which in this case is September 2018. As discussed below, consistent with the AMA framework, the Board finds that a remand is required to correct VA’s pre-decisional duty to assist error. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Veteran contends that his bilateral hearing loss and tinnitus began as a result of his exposure to noise in service. See August 2018 Notice of Disagreement. Favorable findings identified by the AOJ include current diagnoses of bilateral sensorineural hearing loss and tinnitus and a finding that military noise exposure is conceded. See December 2018 rating decision. The remaining question in this case is whether a causal relationship or nexus exists between the Veteran’s bilateral hearing loss and tinnitus and his time spent on active duty. In December 2016, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran’s bilateral hearing loss and tinnitus was less likely than not caused by or the result of noise exposure in the military. In rendering her opinion, the VA examiner reviewed the claims file, thereby considering the service treatment records (STRs), including the entrance and separation audiograms, as well as addressing the Veteran’s in-service and post-service noise exposure. However, the VA examiner failed to address the Veteran’s lay statements when formulating her opinion and rationale which renders the opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Specifically, the Veteran stated that he first noticed his hearing loss and tinnitus in 1972 during military service. See August 2018 private opinion from Central Florida Speech and Hearing Center. Regarding tinnitus, he reported it being constant and bilateral during service. Id. The Veteran’s statements regarding the onset of his hearing loss and tinnitus during service need to be discussed by the VA examiner when formulating a rationale. Further, the VA examiner should address the Veteran’s statement that although he was exposed to post-service occupational noise, he wore hearing protection; whereas, during his three years in the military, he did not use hearing protection. See March 2015 audiology consult. Based on the foregoing, the Board finds that the Veteran must be afforded a new VA examination. A new opinion regarding the etiology of his bilateral hearing loss and tinnitus must consider his lay statements regarding the onset of his hearing loss and tinnitus during service and his report of using hearing protection during post-service noise exposure. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Obtain an examination and opinion from an appropriate provider to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. Following a complete review of the evidence of record, and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s current bilateral hearing loss and tinnitus were caused by or related to noise exposure incurred during active duty service. In formulating a rationale, the examiner should note that in-service noise exposure has been conceded. The examiner should specifically address the Veteran’s statement that he first noticed his hearing loss and tinnitus in 1972 while on active duty and discuss his statement that he used hearing protection during his post-service occupational noise exposure but not during military service. See March 2015 audiology consult and August 2018 private opinion. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not consider the Veteran’s reports of symptoms and history is inadequate. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.