Citation Nr: 21014721 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-66 689 DATE: March 15, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The appellant served in the United States Army National Guard, and had a period of active duty for training (ACDUTRA) from February 1966 to July 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters for further development in April 2020. The appellant and his spouse testified at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Board regrets the delay in rendering a decision in these matters, but finds that another remand is warranted to obtain a new VA medical opinion. In the June 2020 opinion, the examiner stated, in part, that “the studies which suggest a delayed onset of hearing loss in animal subjects are not considered to be clinically predictive because there [is] a cohort of veterans exposed to hazardous noise levels who do not incur hearing loss immediately or later in life.” The examiner goes on to state that the appellant’s exposure to hazardous noise “is not presumptive evidence to grant service connection,” suggesting in this regard that if hazardous noise exposure “were all that was needed” to establish service connection, then all claimants with a history of in-service noise exposure and a current hearing loss disability or tinnitus would be automatically granted service connection for those disabilities. The opinion misunderstands the issue presented, which is evident from the examiner’s statements that hazardous noise exposure “is not presumptive evidence to grant service connection” and that “there are . . . veterans exposed to hazardous noise levels who do not incur hearing loss immediately or later in life.” The available medical knowledge need not be “clinically predictive” that an individual exposed to hazardous noise will develop hearing loss or tinnitus, but instead be sufficient to conclude based on the specific facts of the case that there is more less a 50 percent probability that the claimant’s hearing loss and/or tinnitus is linked to that exposure. Thus, the issue here is whether, in accordance with the benefit-of-the-doubt evidentiary standard set forth in 38 U.S.C. § 5107, the appellant’s in-service hazardous noise exposure can be linked to his current hearing loss and tinnitus based on current medical knowledge as applied to his specific medical history in terms of a degree of likelihood, i.e., a 50 percent probability or more. The examiner does not address that issue, but instead frames the opinion as whether it can be presumed that someone with hazardous noise exposure will develop hearing loss or tinnitus. If the examiner finds the appellant’s hearing loss and/or tinnitus are less likely than not related to in-service noise exposure, an explanation specific to his medical history must be provided. If the examiner finds that based on the available information, an opinion cannot be rendered without resort to mere speculation, a complete rationale must be provided that identifies what data is missing that would enable a non-speculative opinion, or explains why current medical knowledge does not allow for a non-speculative opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). With regard to medical knowledge, the U.S. Court of Appeals for Veterans Claims explained that, in certain cases, the limits of medical knowledge might prevent any medical expert from assessing the likelihood that a condition was due to an in-service disease, injury, or event. Id. For example, if “the valid application of current medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a veteran’s disability, such that a physician could only speculate as to the cause of a claimant’s disability,” that would be an adequate basis for why a medical professional could only speculate as to the cause of a claimant’s disability or condition. Id. The June 2020 VA medical opinion seems at times to suggest that limits in current medical knowledge prevent a non-speculative opinion, but does not squarely address the issue in terms of the factors discussed in Jones. Accordingly, a new VA medical opinion must be obtained that addresses the issues discussed above. The matters are REMANDED for the following action: Obtain a new VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the appellant’s current hearing loss and/or tinnitus are linked to noise exposure as a combat engineer during his period of ACDUTRA. A complete explanation must be made in support of the conclusion reached that is specific to the appellant’s medical history, and which discusses the medical principles involved. If the examiner finds that the information in the claims file or any limits in current medical knowledge prevent rendering an opinion without resort to mere speculation, a complete explanation must be provided that is specific to the appellant’s medical history, and which discusses why the available information is not sufficient, or identifies the nature of the limits in current medical knowledge, such as whether there are multiple possible etiologies of the appellant’s hearing loss and/or tinnitus, with none more likely than not the cause. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.