Citation Nr: 21011968 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-08 358 DATE: March 3, 2021 REMANDED Entitlement to service connection for hearing loss of the left ear is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to July 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of December 2013 issued by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and tinnitus. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in September 2014. The RO issued a statement of the case (SOC) in January 2016 and the Veteran’s timely appeal to the Board followed in February 2016. In a November 2018 decision, the Board subsequently denied the Veteran’s claims. See November 2018 Board Decision at 4-12. The Veteran appealed the Board’s decision as it pertained to service connection for left ear hearing loss and tinnitus to the Court of Appeals for Veterans Claims (CAVC). In a decision of April 2020, the CAVC vacated and remanded the Board’s decision as to these claims. See April 2020 CAVC Decision at 90-96. 1. Entitlement to service connection for hearing loss of the left ear and tinnitus. The CAVC found that the Board had not adequately addressed the Veteran’s assertion that he was not provided a hearing examination upon separation from service. See April 2020 CAVC Decision at 95; see also February 2016 VA Form 9 at 2 (asserting that “the military never performed a hearing test upon my discharge”). The Board noted this assertion in its November 2018 decision. See November 2018 Board Decision at 9 (finding that the Veteran’s assertion is contradicted by “a separation medical examination complete with results of audiometric testing”). However, the CAVC observed that “[the] separation examination reflects that no voice testing was performed and most likely no audiological testing was provided, given that the audiogram lists only zeros at all frequencies.” See April 2020 CAVC Decision at 95 (emphasis added); see also October 2014 Service Treatment Records (STR) at 53. Accordingly, because an October 2013 VA examiner had relied in part on this record of the Veteran’s separation examination, the CAVC found that the Board had not adequately explained why it, in turn, had relied on this VA examination report when reaching its November 2018 decision. See April 2020 CAVC Decision at 95. It is unclear to the Board why listing “zeros at all frequencies” in a separation examination would be “most likely” indicative of an absence of testing, as opposed to a finding of normal hearing. However, the full interpretation of an audiological evaluation is a question requiring medical expertise. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board is not qualified to make its own medical determinations and must rely on independent and qualified medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The CAVC also found that the Board had erred by not remanding the October 2013 VA examiner’s report on the Veteran’s tinnitus for clarification: “[the] examiner conceded that in-service noise exposure was highly probable, but provided a negative nexus opinion in part because there was ‘no objective basis of noise injury’… It is unclear why objective evidence of a noise injury was necessary, given the concession of noise exposure.” See April 2020 CAVC Decision at 95. It is plausible to the Board that “noise injury,” in this context, refers to documented evidence of hearing loss or tinnitus during the Veteran’s active-duty service, and is therefore distinct from “noise exposure.” However, as noted above, the Board is not qualified to make its own medical determinations. See Colvin, 1 Vet. App. at 175. These matters are therefore REMANDED for the following actions: 1. Return the Veteran’s claims file to the October 2013 VA examiner. If the October 2013 VA examiner is unavailable, provide the Veteran’s claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and provide an opinion as to the following questions: (a.) Does the presence of multiple “zero” audiometer results in the July 1971 separation examination report reflect a finding of normal hearing? (b.) Is it at least as likely as not, based on the Veteran’s assertions, the absence of voice testing results, and the presence of multiple “zero” audiometer results, that no hearing examination was in fact conducted at that time? (c.) Is it at least as likely as not that the Veteran’s left ear hearing loss is due to or aggravated by his active-duty service? The examiner is advised that the etiology of a Veteran’s hearing loss cannot be based solely on a Veteran’s “normal” hearing at entrance to and separation from service. (d.) Is “noise injury,” in the context of the October 2013 VA examiner’s report on the Veteran’s tinnitus, distinct from “noise exposure?” (e.) Is it at least as likely as not that the Veteran’s tinnitus is due to or aggravated by his active-duty service? If the examiner concludes that the Veteran’s left ear hearing loss or tinnitus are more likely than not due to an alternative etiology, such as age or the history of pre- and post-service occupational noise exposure documented in the October 2013 examination report, the examiner shall clearly explain the reasoning supporting such a conclusion. If the examiner concludes that the Veteran’s assertions are not credible, the examiner shall likewise clearly explain the reasoning supporting such a conclusion. If the examiner is unable to provide such opinions without personally examining the Veteran, schedule the Veteran for such an examination. 2. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.