Citation Nr: 21013670 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-14 511 DATE: March 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served in the United States Army from September 1967 to April 1969 with service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2013 by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2017. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he is entitled to service connection for bilateral hearing loss as a result of his military service. Specifically, the Veteran contends his bilateral hearing loss is due to a mortar attack at CanTho Airbase in the Republic of Vietnam in late April 1968. The Veteran states that he did not immediately seek treatment for his hearing loss, because he relied on information from his peers suggesting his symptoms would improve with time. When the Veteran later sought medical treatment in service, service treatment records show that he was experiencing trouble hearing in his right ear, and both ears were plugged with cerumen, and flushed. The Veteran further contends that during his tour of duty in the Republic of Vietnam he exclusively worked with helicopter units on the flight line and regularly flew on helicopters and fixed wing cargo planes. See February 2013 Veteran Correspondence; April 2014 VA Form 9; June 2017 Board Videoconference. The Veteran submitted a private medical opinion from Dr. Sprik dated July 2010, who opined the Veteran “showed high frequency symmetric neurosensory hearing loss with speech reception thresholds of 25 and 20 and with discrimination scores of 80 and 100.” Dr. Sprik further opined the Veteran’s hearing loss was likely “contributed to by his military related intense noise exposure.” See July 2010 Non-Government Treatment Records. However, as reported in the December 2017 Board remand, this examination is not adequate because Dr. Sprik does not specify whether the Maryland CNC test was performed. A VA Audiological Examination Disability Benefits Questionnaire (DBQ) was prepared in January 2013 without the Veteran present. See January 2013 VA Audiological Examination DBQ. As previously stated in the December 2017 Board remand, this examination is not adequate as the Veteran required an in-person examination to determine whether the Veteran currently experienced bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one.”). As to the January 2017 VA Hearing Loss and Tinnitus DBQ, remand is required as the examiner did not evaluate the Veteran’s currently diagnosed bilateral hearing loss in light of the Veteran’s conceded in-service acoustic trauma as requested in the December 2017 Board remand. See January 2017 VA Hearing Loss and Tinnitus DBQ. Furthermore, the service treatment records show that the Veteran’s hearing manifested differently on pre induction and later testing during service, yet this possible threshold shift was not evaluated by the examiner. The examiner merely notes the enlistment exam was used for the evaluation as it “better benefited the Veteran.” Id. at 7; see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Notably, the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89(1992). Rather, the proper inquiry is whether the Veteran's current hearing loss is related to the Veteran's conceded in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The examiner’s opinion as to the etiology of the disability should consider the Board’s conceded in-service acoustic trauma, to include noise from helicopters and fix wing cargo planes in the course of working in flight operations, and from the mortar attack in April 1968. As such, a clarification opinion is required to adequately address the etiology of the Veteran’s diagnosed bilateral hearing loss in conjunction with his CONCEDED IN-SERVICE ACOUSTIC TRAUMA. This matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. Further, the AOJ MUST DOCUMENT in the claims file all attempts to contact the Veteran, both via telephone or in writing, regarding scheduling of the requested examinations. 3. If appropriate the AOJ should schedule, the Veteran for a VA audiological examination to determine the nature and etiology of his claimed bilateral hearing loss disability. (a) The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has bilateral hearing loss that was incurred in service, to include his CONCEDED IN-SERVICE ACOUSTIC TRAUMA. (b) If and only if the examiner finds the Veteran’s bilateral hearing loss preexisted his entry in service the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's bilateral hearing loss underwent an incremental increase (aggravated), regardless of permanence, as a result of his CONCEDED IN SERVICE ACOUSTIC TRAUMA. (c) In providing the requested opinions, the examiner is asked to specifically address the Board’s CONCEDED IN-SERVICE ACOUSTIC TRAUMA. • The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account. • It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. • Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. • The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. • The examiner is reminded that noting that hearing loss did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.