Citation Nr: 21010727 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-17 535 DATE: February 25, 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 active duty in the United States Army in the Vietnam War era from March 1963 to March 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an August 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia. In February 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s 2019 remand directed the RO to make further efforts to obtain outstanding service treatment records from the scanning facility responsible for their upload. The RO made further attempts to retrieve any missing service records in July 2020 and received a response that no records were found to be uploaded. Additionally, January 10, 2007 letter to the Veteran from the National Personnel Records Center (NPRC) provided an explanation that service records were not available. The Veteran was given opportunity to submit any records in his possession pertaining to his service period. As all available records have been associated with the file, the Board finds the RO complied with this remand directive and further development on the issue is not warranted. Id. at 271. However, the Board’s remand also instructed the RO to obtain an addendum opinion on the Veteran’s hearing loss and tinnitus. The examiner was directed to provide a nexus opinion on the Veteran’s conditions, with special emphasis on consideration of his credible and competent lay statements. The Board finds remand is necessary to address deficiencies in the examination and further develop the claim and, as such, substantial compliance was not achieved. Id. Entitlement to service connection for bilateral hearing loss and tinnitus are remanded. The Veteran contends he is entitled to service connection for bilateral hearing loss and tinnitus. He reports daily exposure to hazardous noise from tank and gunfire while serving as a field wireman with an artillery unit. See NOD, 2/23/2018. The Veteran notes he served the vast majority of his active duty overseas and asserts he has expereienced symptoms of his disabilties since his separation from service. The Veteran was provided VA examinations in December 2016 and January 2020. Each examination demonstrated the Veteran had a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Board concluded the 2016 examination was inadeuate for rating purposes due to the examiner’s failure to reconcile his opinion with the Veteran’s lay statements. The Veteran has provided credible testimony that he suffered in-service noise exposure as a result of his MOS and his DD214 confirms his occupational specalty and his reciept of a sharpshooter badge (M-14). As the record confirms the circumstances and characterization of his service period, noise exposure is established. The 2020 examiner provided a negative nexus opinion, reasoning the Veteran’s audiological results were consistent with December 2016 testing results and is likely due to a natural progression of the disability. The examiner relies on a lack of entrance and separation audiograms and evidence of the disability within one year of service. The Board notes that the absence of service treatment records, while probative, cannot be the sole basis of a negative finding. Further, the Veteran reported to the 2020 examiner that he presently suffers from tinnitus with an onset of at least 1972. See C&P, 1/18/2020, pg 5/8. The Veteran is competent to report his tinnitus even without a medical diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002) (finding veteran competent to testify to tinnitus which is capable of lay observation). Tinnitus is a disorder uniquely ascertainable by the senses as it is defined as a ringing in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unfortunately, the Board cannot make a fully-informed decision on the issues because no VA examiner has provided a fully reasoned medical opinion that addresses the Veteran’s competent and credible lay contentions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the medical opinions rely on an absence of in-service evidence, which is an insufficent rationale to support a negative nexus opinion. As the Veteran’s representative has alleged worsening of his disability and requested a new examination, the issue is remanded for further development. (CONTINUED ON NEXT PAGE) Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum opinion on the Veteran’s claims of hearing loss and tinnitus. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s 3/27/2018 Form 9 statement, where he described his in-service noise exposure, his immediate onset and symptoms of hearing loss in service, and his assertion that the symptoms persisted since service. See also his restated testimony in Third Party Correspondence, 11/30/2020. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that: (a.) the Veteran’s bilateral hearing loss is related to his noise exposure in service. (b.) the Veteran’s tinnitus is related to his noise exposure in service The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.