Citation Nr: 21014953 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-31 783 DATE: March 16, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1988 to June 1994, including service in the Southwest Asia Theater of operations during the Persian Gulf War, with additional service in the Army Reserves. His decorations for his active duty service include a Combat Infantry Badge and Parachutist Badge. These matters are on appeal from a June 2016 rating decision. In December 2020, the Veteran testified at a virtual hearing with the undersigned Veterans Law Judge. 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 service. He had military occupational specialties (MOS) of heavy wheel vehicle mechanic/recovery operations and infantryman. He testified that during service he did not wear hearing protection. However, he further testified that he wears hearing protection during employment as a diesel mechanic. See April 2017 Notice of Disagreement. The service treatment records include a December 1987 enlistment examination and audiometric findings which reflect hearing loss, but do not demonstrate hearing loss for VA purposes. However, an October 1992 audiogram indicates left ear hearing loss for VA purposes. On March 2016 VA hearing loss and tinnitus Disability Benefits Questionnaire examination, the audiologist stated that the Veteran was difficult to test as his behavior suggested symptom magnification. His thresholds fluctuated throughout the testing and repeated re-instruction was necessary. The audiologist opined that the Veteran’s bilateral hearing loss was not related to service based on the rationale that it existed prior to service and that tinnitus is a symptom of bilateral hearing loss. The audiologist stated that an opinion regarding the etiology of the Veteran’s tinnitus could not be provided without resort to speculation given his 21-year history of post-service noise exposure as a diesel mechanic and his symptom magnification. However, as noted, the Veteran testified that he wears hearing protection as a diesel mechanic. As it remains unclear whether the Veteran has any currently diagnosed bilateral hearing loss and tinnitus that are related to his service, including whether the Veteran’s bilateral hearing loss pre-existed service and was aggravated during 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 action: 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(s): Bilateral hearing loss a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that any currently diagnosed bilateral hearing loss existed prior to the Veteran’s entry into active service in February 1988? b) If the examiner determines that there is clear and unmistakable evidence that bilateral hearing loss pre-existed service, is there clear and unmistakable evidence that the pre-existing bilateral hearing loss disability was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression in connection with the Veteran’s active duty service? c) If there is not clear and unmistakable evidence that a bilateral hearing loss disability pre-existed service, or if there is not clear and unmistakable evidence that a pre-existing bilateral hearing loss disability was not worsened beyond its natural progression by service, is it at least as likely as not (50 percent or more probability) that any bilateral hearing loss disability had its onset in or is 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. Tinnitus a) Is it at least as likely as not (50 percent or more probability) that tinnitus had its onset in or is etiologically-related to noise exposure during the Veteran’s active duty service, or was manifested within the first post-service year? b) If the answer to part (a) above is “no,” and the Veteran’s bilateral hearing loss has been related to his service, is it at least as likely as not (50 percent probability or more) that any currently-diagnosed tinnitus is (a) proximately due to or the result of the Veteran’s service-connected bilateral hearing loss disability, or (b) aggravated (any incremental increase in the tinnitus beyond its normal progression) by his service-connected bilateral hearing loss disability? If it is determined that the tinnitus is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset. 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. 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. 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.