Citation Nr: 21014665 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-61 425 DATE: March 15, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Air Force from September 1986 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed that decision. In a December 2018 decision, the Board also denied the Veteran’s service connection claim for tinnitus. Subsequently, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) and the parties agreed upon a Joint Motion for Remand in July 2020. In that same month, the Court issued an order vacating the decision and remanding the claim for further development. In the July 2020 JMR, the parties agreed that the Board failed to ensure VA complied with its duty to assist when it relied on an inadequate February 2016 VA examination. Specifically, they found that the February 2016 examiner misstated the medical literature on which she relied to form her medical opinion, and that the opinion failed to apply the principles within that medical literature to the Veteran’s specific circumstances. In the opinion, the examiner referenced the Institute of Medicine 2006 report Noise and Military Service Implications for Hearing Loss and Tinnitus as a part of her rationale for denying the claim. She indicated the study never stated that tinnitus could result from undiagnosed noise injuries. However, the report indicates that, although degenerative changes in afferent pathways will most likely not affect auditory thresholds, it is possible that they can contribute to other central processes such as tinnitus. Further, she based her rationale on the relation to scientific literature in “most cases” and not the Veteran’s particular case. Moreover, the Court found the examination report does not note any evidence about the Veteran’s type of in-service noise exposure which has been conceded by VA and the Board, and the examiner did not explain why the conceded noise exposure would not amount to the type of exposure that she considers noise injury. Therefore, the parties to the JMR agreed that a remand for VA to obtain a medical opinion that addresses the Veteran’s circumstances and the relevant medical literature was warranted. The Board notes that in May 2018 the Veteran attempted to opt into the Rapid Modernization Appeals Program by electing a higher-level review. However, in a June 2018 correspondence, the VA informed the Veteran that his appeal was ineligible for the program. Thus, the claim remains in the legacy appeals system. Entitlement to service connection for tinnitus is remanded. Initially, the Board notes that military personnel records show the Veteran’s military occupational specialty was a security journeyman. The Board also notes that the VA and the Board have conceded that the Veteran was exposed to noise while in service. In a March 2016 correspondence, the Veteran stated that following enlistment he was exposed to the loud noises, such as: weapons being discharged, sirens, and multiple aircraft engine run ups on the runway. While he was provided hearing protection, he stated that it was insufficient. In his December 2016 VA Form 9, the Veteran stated that, while a security policeman, he experienced noise exposure from firearms during training, flash ban simulators and the arrival and departure of numerous aircraft. The Veteran was afforded a VA examination related to his claim in February 2016. The examiner noted the Veteran reported a constant buzzing sound in both ears that is most noticeable when it is very quiet in a room. At that time, he reported that he was unsure when his tinnitus began and could not relate the onset to a specific event. Ultimately, the examiner opined that it is less likely than not the condition was caused by or a result of military noise exposure. The examiner reasoned that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. She noted that tinnitus may occur following a single exposure to high intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. Lastly, she indicated that tinnitus is accompanied by measurable hearing loss. As noted in the JMR and stated in the reasons above, the opinion is inadequate. The examiner misstated the findings of the medical literature and did not relate the information to the Veteran’s specific set of facts. Moreover, she did not address the Veteran’s assertions or that his noise exposure has been conceded by the VA. Lastly, she did not address the possibility of a delayed onset of tinnitus following the Veteran’s conceded military noise exposure. For these reasons, remand is necessary for another medical opinion. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction should submit the Veteran’s claims file to the February 2016 VA examiner or to another suitably qualified VA examiner for a medical opinion as to the nature and etiology of any current tinnitus. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements made by the Veteran. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s bilateral tinnitus is related to his military service, to include any noise exposure therein. In rendering this opinion, the examiner should discuss medically known or theoretical causes of tinnitus and describe how tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how tinnitus develops from other causes, in determining the likelihood that the disorder was caused by noise exposure in service as opposed to some other cause. The examiner should specifically address the assertions made by the Veteran that he was exposed to noise from discharging weapons, sirens, flash ban simulators, and aircraft. It is also noted that the VA and the Board has already conceded that the Veteran was exposed to noise in service. The examiner should refer to and address the 2006 report Noise and Military Service Implications for Hearing Loss and Tinnitus and any other medical literature deemed necessary. The examiner should also explain why the conceded noise exposure would not amount to what is considered noise injury. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.