Citation Nr: 21008418 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-61 586 DATE: February 17, 2021 REMANDED 1. Entitlement to service connection for bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served in the United States Army from March 1964 to April 1967. The Veteran was afforded a hearing before the undersigned Veterans Law Judge on April 24, 2019 in Memphis, Tennessee. A copy of the transcript is located in the Veteran’s claims file. These matters come before the Board of Veterans’ Appeals (Board) following an appeal of an October 2019 Board decision that denied the within claims, as well as two separate claims for entitlement to service connection for a psychiatric disorder and testicular inflammation. In September 2020, the parties entered a Joint Motion for Partial Remand (JMPR) pertaining to the issues addressed herein, stating that remand was warranted because VA did not provide the Veteran an adequate hearing examination and did not provide an adequate statement of reasons or bases as to why it denied the Veteran’s claim for service connection for tinnitus. The claims relating to a psychiatric disorder and testicular inflammation were requested to be dismissed. Thus, they are no longer part of the current appeal. The JMPR was granted by the United States Court of Appeals for Veterans Claims (Court) later in the same month. The Veteran has alleged that his bilateral hearing loss disability and tinnitus are the result of in-service noise exposure, including tank noises and gun fire, without hearing protection. The Veteran underwent an audiological VA examination in July 2016. The Veteran was assessed with bilateral sensorineural hearing loss and he reported experiencing constant tinnitus that began approximately 10 to 15 years prior. The Veteran has separately reported that his tinnitus began in service. The Veteran’s military occupational specialty was noted to have a moderate probability for hazardous noise exposure, and he reported occupational noise exposure working as a city bus driver since his separation from service. The examiner stated that it was less likely than not that the Veteran’s current bilateral hearing loss is a result of military noise exposure. In her rationale, the examiner stated that the Veteran’s service treatment records contain audiograms that do not show significant threshold shifts between the Veteran’s enlistment and separation examinations. The examiner also stated that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, stating that the Veteran’s enlistment and separation audiograms do not show damage to the Veteran’s hearing mechanism on active duty and that there is no evidence of tinnitus in the service treatment records. Within the October 2019 Board decision, it acknowledged the Veteran had “some auditory shifts within the service records” when comparing the Veteran’s enlistment and separation examinations. The Board further conceded that the Veteran had in-service noise exposure, but noted that the Veteran’s hearing remained within normal hearing loss thresholds of 25 decibels or less in each Hertz level measured during service. The parties in the JMPR stated that remand is warranted because the July 2016 VA examiner did not provide a sufficient rationale as to why the Veteran’s hearing loss is not related to acoustic trauma in service. The parties agreed that remand was necessary so that VA can provide the Veteran with an audiological examination that informs the Board “whether there is a medically sound basis to attribute the post-service findings to the injury in service or whether they are more properly attributable to intercurrent causes.” Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, remand is warranted for development consistent with the JMPR. As the Veteran’s tinnitus disability is inextricably intertwined with the required development relating to the Veteran’s bilateral hearing loss, the issue of entitlement to service connection for tinnitus is also remanded. In reviewing the July 2016 VA examination again, the Board realizes that the examiner did not review all three audiometer results that were documented within the Veteran’s service treatment records. For example, within the July 2016 examination report, the examiner referred to the enlistment audiogram from March 1964 and the separation audiogram dated “1/4/1967.” While that is a date an audiogram was performed, that is not the date of the separation audiogram, although the fact that the examiner thought that such was the separation examination is understandable, as it states on the Report of Medical Examination that the purpose of the examination was, “Separation.” There is a separation audiogram dated April 4, 1967, which is the same month of the Veteran’s separation from service. Thus, the new opinion should consider all three audiometers within the service treatment records. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiological examination with an appropriate clinician to determine if the Veteran’s bilateral hearing loss disability and tinnitus had their onset in service or are otherwise related to service. The claims file must be made available to the examiner for review. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from March 1964 to April 1967. • The Veteran believes that his current bilateral hearing loss disability is related to noise exposure he had during service. • A March 1964 Report of Medical Examination from service entrance shows that clinical evaluation of the Veteran’s ears was normal. An audiometer shows the results of the hearing test performed at that time. See VBMS entry with document type, “Military Personnel Record,” receipt date 04/14/2016, with “#1” in the subject field, pp. 14-15 (audiometer is on p. 15, item #71). • A January 1967 Report of Medical Examination shows that clinical evaluation of the Veteran’s ears was normal. An audiometer shows the results of the hearing test performed at that time. See VBMS entry with document type, “STR,” receipt date 04/14/2016, with “#2” in the subject field, pp. 3-4 (audiometer is on p. 4, item #71). This copy is clearer than other copies of the same record. • An April 1967 Report of Medical Examination from service discharge shows that clinical evaluation of the Veteran’s ears was normal. An audiometer shows the results of the hearing test performed at that time. See VBMS entry with document type, “STR,” receipt date 04/14/2016, with “#1” in the subject field, pp. 17-18 (audiometer is on p. 18, item #71). • In the April 1967 Report of Medical History that the Veteran completed at service discharge, he denied a history of hearing loss. See VBMS entry with document type, “STR,” receipt date 04/14/2016, with “#1” in the subject field, p. 19 (item #20, first column). • VA treatment records show that the Veteran underwent an audiological evaluation in December 2014. The audiogram is not included in the VA treatment records. Rather, within that treatment record, it states, “Please see Audiology Display to view audiogram.” If you can view those results, it would be helpful. That treatment records shows the Veteran reported he was in the U.S. Army from 1964-1967 and reported his job to be in the tank division. He reported that this was a very noisy job, and that he believed this contributed to his hearing difficulties. Civilian noise exposure is positive with the Veteran reporting he is a bus driver and stated that it is sometimes noisy with children screaming). He also reported a non-bothersome occasional tinnitus. The audiologist documented that the Veteran had “[n]ormal hearing through 750 Hz, sloping to a severe [sensorineural hearing loss] bilaterally.” See VBMS entry with document type, “CAPRI,” receipt date 03/21/2016, pp. 7-8. • A July 2016 VA hearing loss and tinnitus disability benefits questionnaire shows hearing test results. The examiner noted the Veteran’s military occupational specialty of light vehicle operator, which the examiner wrote had a moderate probability for hazardous noise exposure. The examiner documented the Veteran reported exposure to tanks noises and gunfire without hearing protection and occupational noise exposure of driving a city bus. The examiner documented having reviewed the March 1964 and January 1967 audiograms and concluded that there were no significant threshold shifts when comparing the enlistment to the separation audiogram and that it was less likely than not that the current hearing loss is a result of military noise exposure. See VBMS entry with document type, “C&P Exam,” receipt date 07/07/2016 (opinion is at p. 4). • The July 2016 examiner did not acknowledge the April 1967 audiogram, which is the audiogram that was performed at the Veteran’s separation from service, which location in the file is described above. This means that the July 2016 examiner did not review all the relevant audiograms when providing the opinion. • As to tinnitus, the July 2016 VA examiner documented that the Veteran reported the onset of bilateral tinnitus had begun 10 to 15 years prior (approximately 2001 to 2006). The examiner concluded that when comparing the enlistment audiogram to the separation audiogram, there was no evidence of damage to the hearing mechanism while on active duty and added there was no evidence of tinnitus in the service treatment records. See VBMS entry with document type, “C&P Exam,” receipt date 07/07/2016, p. 5. • At an April 2019 hearing, the Veteran testified that he had ringing in his ears during service, but did not relate it to losing his hearing at that time. He stated he had the ringing in the ears since service until the present time. He stated he noticed his hearing worsened after having worked with tanks for one year. He reported driving a bus for between 37 and 38 years. See VBMS entry with document type, “Hearing Transcript,” receipt date 04/24/2019. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. If the examiner finds it less likely than not that the Veteran’s bilateral hearing loss disability and/or tinnitus were caused by in-service noise exposure, the examiner is asked to explain whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.