Citation Nr: 21011468 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-55 858 DATE: March 2, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served in the Air Force with active duty service from March 1971 to January 1974. He also served in the Oregon Air National Guard from January 1974 to April 1976. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In July 2017, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for tinnitus and a bilateral hearing loss disability. The Veteran timely disagreed in a July 2017 Notice of Disagreement (NOD) and perfected his appeal in an October 2017 VA Form 9. In February 2019, the Veteran’s case was received at the Board. Then, in November 2020, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file.   1. Entitlement to service connection for tinnitus is remanded. The Veteran contends he observed symptoms of tinnitus during service. See Transcript dated November 2020 at 13. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new medical opinion before the Board is able to decide on the merits. A new opinion is required because the opinion of record did not consider the Veteran’s lay observations of tinnitus during service. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). And part of that duty to assist includes the duty to conduct an adequate medical examination. 38 U.S.C. § 5103A; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An adequate examination is “based upon consideration of the [V]eteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination that is based on an inaccurate factual premise lacks probative value, Reonal v. Brown, 5 Vet. App. 458, 461 (1993), as does an examination that merely lists facts and conclusions with no reasoned explanation connecting the two, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report cannot merely draw conclusions from data; rather, it should include “a reasoned medical explanation connecting the two”). In May 2017 a VA disability examination was performed to evaluate the Veteran’s tinnitus. The examiner noted the Veteran’s reported his tinnitus “began one year ago.” See VA Disability Benefits Questionnaire (DBQ) at 6. After evaluating the Veteran, the examiner opined that the Veteran’s tinnitus is not related to his service. Id. Then, after conducting his examination, the examiner concluded the Veteran’s tinnitus is not related to his service. He indicated his conclusion was, at least in part, based on the Veteran’s assertions that it began after service. Id. The same examiner evaluated the Veteran’s hearing loss. The Veteran reported he does not hear well in crowds and must ask people to repeat themselves. Id. at 5. Audiometric testing was conducted and revealed pure tone thresholds, in decibels, as follows: Hertz (Hz) 500 1000 2000 3000 4000 Average Hz Right Ear 05 15 10 20 15 15 Left Ear 10 10 15 45 40 27.5 The examiner used the Maryland CNC word list and found speech discrimination scores of 98 percent in the right left ear. The examiner noted the diagnosis of sensorineural hearing loss at 6000 Hz or higher for the right ear. Id. at 3. For the left ear, the examiner noted the diagnoses of sensorineural hearing loss at 500 to 4000 Hz and 6000 Hz or higher. Id. at 4. Then the examiner opined that the Veteran’s right ear hearing loss is not related to his service. He indicated that even though the Veteran was exposed to jet engine noise during service, audiometric testing at separation showed his hearing at the right ear was normal. Id. Similarly, the examiner opined that the Veteran’s left ear hearing loss disability is not related to his service. Id. at 5. He indicated that even though the Veteran has a diagnosed hearing loss disability, audiometric testing at discharge showed his hearing was normal. Id. In October 2017, the VA received a medical study wherein the authors theorize that, based on imaging studies of rats’ inner ears, noise-induced damage to a human’s ear has progressive consequences which are more widespread than conventional threshold testing shows. The authors assert that neurodegeneration could add to difficulties hearing and contribute to tinnitus. Sharon G. Kujawa & Charles Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration after “Temporary” Noise-Induced Hearing Loss?, J. Nuerosci. https://www.jneurosci.org/content/29/45/14077 (last visited February 9, 2021). Later, in November 2020, a Board hearing was conducted for the Veteran’s claims. At that hearing the Veteran indicated he misunderstood what was the VA examiner was asking about during his tinnitus examination. See Transcript dated November 2020 at 13. The Veteran testified that, during the examination, he was confused about what they were discussing and mistakenly suggested his symptoms started after service. Id. He was emphatic that he had observed symptoms of tinnitus during service. Id. Turning to the Veteran’s claim for disability compensation, now that the Veteran has reported he had a mistaken understanding of what was being asked of him at the May 2017 VA disability examination, the examiner may not have received all of the relevant details of the Veteran’s past medical history. Nieves-Rodriguez, 22 Vet. App. at 301. And even though the Veteran did not assert his confusion was in any part due to that examiner, the opinion is insufficient to decide the Veteran’s tinnitus claim. Barr, 21 Vet. App. at 311.  Also, the Board acknowledges that ringing in the ears (tinnitus) is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). But, thus far, the lay statements of record address observations of tinnitus during service. A remand is warranted because the Board is unable to decide the claim based on the May 2017 disability examination and/or lay evidence of record. The VA should schedule the Veteran for a new examination for his tinnitus. 38 U.S.C. § 5103A. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends his hearing loss disability is related to his service at Fairchild Air Force Base (AFB), Malmstrom AFB, and Osan Air Base. See Transcript dated November 2020 at 4. Although the Board regrets the delay, the Veteran’s hearing loss disability claim must be remanded with his tinnitus claim before the Board is able to decide on the merits. A medical opinion on the issue of tinnitus could significantly impact a decision on the hearing loss disability claim; so, the issues are inextricably intertwined, and a remand of the Veteran’s hearing loss disability claim is required. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Since a VA disability examination for tinnitus includes audiometric testing, the VA should request a new medical opinion that addresses the medical article submitted to the VA and the Veteran’s Board hearing testimony. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hearing loss disability and tinnitus. The examiner must review the claims file. The examiner or examiners should provide an opinion as to the following questions: a. Is it at it at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss is related to his service? b. Is it at it at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss is related to his service? c. Is it at it at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus is related to his service? d. Is it at least as likely as not that the Veteran’s tinnitus (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Address the medical study, cited in the October 25, 2017, Correspondence from the Veteran regarding the relationship between noise exposure and hearing loss and tinnitus. The pertinent study is Sharon G. Kujawa & Charles Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration after “Temporary” Noise-Induced Hearing Loss?, J Neurosci. https://www.jneurosci.org/content/29/45/14077 (last visited February 9, 2021). ii. Discuss the Veteran’s November 2020 testimony that he worked inside a building located next to an airfield but could hear aircraft while working. And one of the buildings he worked in was located next to a site where jet engines were tested. Those engines would run for long periods of time, from a couple of hours to all night. iii. Discuss the Veteran’s testimony that he observed symptoms of tinnitus while in service. iv. Address the Veteran’s testimony that he worked as a construction supervisor for 25 years. It entailed a lot of office work. And when he was on site where loud noise was present, he wore ear protection as required by occupational health and safety regulations. v. Discuss his testimony that, in the 1990s, he observed difficulties hearing his wife whenever she was not in front of him. He indicated it occurred frequently, but not all the time. vi. Address the May 2017 VA medical opinion that concluded the Veteran’s hearing loss disability and tinnitus is not related to his service. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.