Citation Nr: 21014171 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-34 728 DATE: March 11, 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 September 1962 to September 1968. These matters are on appeal from a July 2018 rating decision. In February 2021, the Veteran testified at a virtual hearing with the undersigned Veterans Law Judge. While the Veteran has a current representative, he proceeded pro se at the hearing. A transcript of the hearing is of record. The Veteran contends that he has bilateral hearing loss and tinnitus that is related to acoustic trauma during basic training. Preliminarily, the record before the Board appears to be incomplete. In February 2021, the Veteran testified that he received private medical treatment for his hearing loss and tinnitus. However, these records have not been associated with claims file. As the record before the Board is incomplete as to all issues on appeal, on remand, the AOJ must ensure that all evidence considered in adjudication of the Veteran's appeal is associated with the electronic claims file. Next, on July 2018 VA hearing loss and tinnitus Disability Benefits Questionnaire examination, the audiologist noted the Veteran service and military occupational specialist (MOS) of 76D (ordnance supply specialist) which is rated for high probability for noise exposure. The Veteran reported exposure to rifles, grenades, and explosives during basic training. He also reported exposure to M60 machine guns, military vehicles, diesel engines, and high pitch sounds related to repairing electronics. On examination, behavioral testing revealed inconsistent responses to pure tone stimuli with no change in response behavior with re-instruction. As such, pure tone tests results were invalid and could not be used for rating purposes. The examining audiologist opined that although the Veteran had an MOS rated as high probability for noise exposure, review of the medical records showed no evidence of hearing loss or permanent significant changes in hearing sensitivity when the enlistment and separation examinations were compared. She noted that there were no reports of tinnitus during or shortly after leaving service. On these bases, she opined that the Veteran’s bilateral hearing loss and tinnitus are less likely than not caused by or the result of his service. On review of the medical opinion, to the extent that the VA audiologist’s opinion is based on the lack of hearing loss during service, including at separation from service, the Board finds that it is flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss or tinnitus. Ledford v. Derwinski, 3 Vet. App. 87 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, the VA medical opinion is based on an inadequate and incomplete examination. As it remains unclear whether the Veteran has any currently diagnosed bilateral hearing loss and tinnitus that are related to his service, and to afford a VA examiner an opportunity to consider the Veteran’s testimony regarding the onset and etiology of his bilateral hearing loss and tinnitus, another VA examination and opinion should be obtained. Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020). The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain any private treatment records related to his bilateral hearing loss and tinnitus. 2. Schedule the Veteran for a VA examination which addresses the nature and etiology of any bilateral hearing loss disability and tinnitus. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or more probability) that the Veteran’s bilateral hearing loss disability and tinnitus had their onset in or are etiologically-related to noise exposure during the Veteran’s active duty service, or was manifested within the first post-service year? In rendering the above bilateral hearing loss opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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. As noted above, the Veteran contends that he was exposed to military noise during basic training. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony and complaints concerning the onset of his hearing loss and tinnitus, including those made to medical providers; a December 2018 notice of disagreement; and February 2021 hearing transcript. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. (Continued on the next page)   The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.