Citation Nr: 21011000 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-35 317A DATE: February 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus remanded. REASONS FOR REMAND The Veteran has active service from June 1974 to January 1976. This case is before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a November 2017 hearing. After remanding these matters in September 2018, the Board issued a decision denying these issues in October 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board’s decision that he Board did not ensure that all potentially relevant audiometric testing results were associated with the record, specifically including results from June 2015, November 2017, and July 2019 audiology consults (8/11/2020 CAVC Decision, pg. 4; 5/5/2016 CAPRI, pg. 276; 7/22/2019 CAPRI, pgs. 2 and 483). Additionally, the Court cited a new examination for tinnitus should be sought to address any relationship between noise induced hearing loss and whether the Veteran's tinnitus is related to service and the Veteran's lay statements of record regarding the onset of minor tinnitus during service (8/11/2020 CAVC Decision, pg. 6). The matters are before the Board for review consistent with the JMPR. The Veteran’s enlistment physical reveals the Veteran’s ears were clinically evaluated as normal. He was found qualified for enlistment and no hearing defect or diagnosis was noted on his enlistment examination (7/23/2010 Medical Treatment Record - Government Facility, pgs. 14-15). The Board notes that the Veteran's enlistment physical indicates right ear hearing acuity over 20 decibels at 500 Hz, and left ear hearing acuity over 20 decibels at 500, 1000, 2000, and 4000 Hz. In accordance with Hensley v. Brown, 5 Vet. App. 155, 157 (1993), this shows some degree of pre-service hearing loss, although it was not considered a disqualifying defect, and the Veteran was qualified for enlistment. The Veteran’s November 1975 separation physical (7/23/2010 Medical Treatment Record - Government Facility, pg. 17) reveals pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 35 NA 35 LEFT 30 30 30 NA 35 On remand, the examiner must provide an etiology opinion that addresses the lay testimony and the Veteran’s separation audiometry scores in light of Hensley, noting all results exceed 20, suggestive of some degree of hearing impairment. The matters are REMANDED for the following action: 1. The AOJ should ensure all available audiologic examinations and results of audiometric testing are of record, to include results of testing conducted in association with consults occurring on June 22, 2015; November 7, 2017; and July 17, 2019. Associate results with the record. If no result can be found or are not available, the AOJ should ensure an description of efforts undertaken to obtain the results, and an explanation as to any unavailability is included in the record. 2. After the previous remand directive is complete, the AOJ should schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any bilateral hearing loss and/or tinnitus. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed bilateral hearing loss and/or tinnitus is a result of service or any incident occurring during service. The examiner is reminded to consider the results of the Veteran’s entrance and separation audiometric examinations and the lay reports that his hearing loss as a result of being around the motor pool during service, in-service difficulty hearing while in crowds and with background noise, and his testimony that hearing protection was not worn during his active service. With regard to tinnitus, the Veteran’s lay statement that he first noticed tinnitus while in the service should be addressed (11/21/2017 Hearing Transcript, pgs. 3-5). A reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions as to his bilateral hearing loss or the inservice onset of his tinnitus, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and explain why this is so, (e.g., whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.