Citation Nr: 21013519 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-39 260 DATE: March 9, 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 Army from June 1974 to June 1977, with additional service in the Alabama Army National Guard. This matter was previously before the Board in August 2018 and February 2020 at which times the service connection claims were remanded for further development. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must again be remanded for further development. The Board regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. Service connection for bilateral hearing loss Service connection for tinnitus The Veteran asserts that service connection is warranted for bilateral hearing loss and tinnitus due to noise exposure sustained during active service and due to his responsibilities as a rifleman during his Reserve service. Pursuant to the February 2020 Board remand, the Veteran was accorded a VA examination for bilateral hearing loss and tinnitus in October 2020. The examiner confirmed the diagnosis for bilateral hearing loss and opined that this disability was not related to the Veteran’s service. The examiner explained that the Veteran’s records show no hearing loss or significant auditory threshold shifts during military service when comparing enlistment and separation audiograms. However, while the examiner noted that the Veteran had described in-service exposure to gunfire and explosives, the examiner did not take the Veteran’s statements about his in-service noise exposure into consideration in rendering this opinion. Specifically, the examiner merely mentioned the Veteran’s report of military noise exposure without giving an opinion as to how this noise exposure may have affected the Veteran’s subsequent development of bilateral hearing loss. Accordingly, the Board finds that the October 2020 VA examination is inadequate for adjudication purposes because the examiner failed to consider the Veteran’s lay statements in rendering an opinion about his bilateral hearing loss. Additionally, the October 2020 VA examiner indicated that the Veteran reported recurrent tinnitus that gradually onset in the 1980s and has worsened over time. She also noted that the Veteran reported the onset of his tinnitus “two years ago” at a prior August 2012 VA examination. Nonetheless, the examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with the Veteran’s bilateral hearing loss, as tinnitus is known to be a symptom associate with hearing loss. As such, the remand of the hearing loss claim could affect the tinnitus claim. Thus, the Board finds that the claims are inextricably intertwined and that a decision on the tinnitus claim at this time would be premature. Further, the Board notes that, pursuant to that last remand, the Regional Office (RO) furnished the Veteran with a new VA Form 21-4142 in order to obtain medical treatment records from Dr. R.L. Significantly, however, the Veteran failed to respond to the request. In this regard, the Board hereby notifies the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA’s duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, the Veteran must make reasonable efforts to assist VA in obtaining the outstanding private medical treatment records. Accordingly, these matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R.L. Obtain all authorized medical treatment records from Dr. R. L. and associate them with the claims file. Document all efforts to retrieve these medical records in the Veteran’s claim folder. 2. Then schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his claimed bilateral hearing loss and tinnitus. The claims file must be made available to the examiner for review in conjunction with this examination. After examining the Veteran and reviewing the record, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset in active service or within one year thereafter or is otherwise related to his in-service noise exposure. The examiner is also advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulation any opinion. A clear explanation for all opinions would be helpful, and a discussion for the facts and medical principles involved would be of considerable assistance ot the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.