Citation Nr: 21008677 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-60 189 DATE: February 17, 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 in the United States Marine Corps from September 1976 to December 1980. In July 2019, the Veteran presented sworn testimony during a Travel Board hearing in Houston, Texas, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran’s hearing loss claim was remanded in December 2019 for a new VA examination and opinion. The examination was obtained in January 2020. VA-LHI Hearing Loss and Tinnitus examination, January 2020. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but also noted that he could not test any of the frequencies because the results were inconsistent with organic hearing loss. Given such, it is unclear, if the test results were invalid, why the examiner provided a hearing loss diagnosis. Further, the examiner was specifically directed to address the September 2019 private audiologist letter and audiometric results; however, this was not accomplished. See Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As to the private audiological examination report, that examiner recommended further testing as the pure-tone testing was not in agreement with speech testing. He specifically stated: At today’s visit, pure-tone testing was not in agreement with Speech testing. Pure-tone results indicated a moderate-to-profound hearing loss for each ear, [u]nmasked bone conduction indicated a mild-to-moderate hearing loss for the better ear. However[,] Speech Reception Thresholds were obtained at 15 dB HL for each ear and Recorded Word Recognition Score using Maryland CNC word lists were “Excellent” (96%) for the right ear and “Excellent” (100%) for the left ear at 60 dB HL. During our interview there was no communication difficulties noted. An opinion for hearing loss cannot be given at this time due to the inconsistencies of inter-test agreement. Further testing is advised. Hemphill Hearing Center, LLC, September 2019. Once again, this examination as well elucidated the inconsistent testing. Given the aforementioned, this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple audiologists have provided conflicting opinions on the Veteran’s audiometric results and whether he has hearing loss for VA purposes, as well as opinions reflect inconsistency and inconclusiveness within the audiometry testing. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Entitlement to service connection for tinnitus is remanded. The Veteran’s tinnitus claim was also remanded in December 2019 for a new VA examination and opinion. As noted above, the January 2020 VA opinion was inadequate and a new opinion from an IME is required. The tinnitus claim must also be remanded again. See Stegall, supra; see also Barr, supra. The matters are REMANDED for the following action: 1. Obtain an advisory medical opinion from an independent medical expert pursuant to 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The following should be addressed: a) Whether the Veteran has hearing loss as defined by VA pursuant to 38 C.F.R. § 3.385. b) Whether the etiology of the Veteran’s bilateral hearing loss and tinnitus is related to service. The examiner should specifically address the following questions: a) Is it at least as likely as not that the Veteran’s bilateral hearing loss and/or tinnitus were caused by his PRESUMED IN-SERVICE NOISE EXPOSURE? Please specifically address: i) the September 2019 private audiologist letter and audiogram showing possible hearing loss for VA purposes and linking the Veteran’s tinnitus to service, ii) January 2020 VA Hearing Loss and Tinnitus DBQ, iii) January 2019 VA Hearing Loss and Tinnitus DBQ. b) Is it at least as likely as not that the Veteran’s tinnitus is a symptom of his hearing loss? c) Do the Veteran’s reports about hearing loss and tinnitus, as to in-service noise exposure align with how the disease or disability is known to develop? Are the Veteran’s assertions consistent with medical knowledge or implausible? • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page)   IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.