Citation Nr: 21022258 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-15 589 DATE: April 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 Veteran served on active duty from April 1965 to January 1967, to include service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge. This appeal arises from a September 2013 rating decision by a VA Regional Office (RO) and was previously before the Board of Veterans’ Appeals (Board) in March 2018 and August 2019. In March 2018, the Board, inter alia, reopened the claim of entitlement to service connection for bilateral hearing loss and denied entitlement to service connection for bilateral hearing loss, tinnitus, and posttraumatic stress disorder (PTSD). The Veteran appealed the Board’s March 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 Order, the Court granted the parties’ February 2019 Joint Motion for Partial Remand (JMPR) to vacate and remand the Board’s decision for further development as to the hearing loss, tinnitus, and PTSD issues. The appeal returned to the Board, and in August 2019, the Board again denied entitlement to service connection for hearing loss, tinnitus, and PTSD. The Veteran appealed the Board’s August 2019 decision to the Court. In a December 2020 Order, the Court granted the parties’ November 2020 JMPR to vacate and remand the Board’s decision for further development for only the hearing loss and tinnitus issues. The appeal is now again before the Board. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. In a July 2012 statement, the Veteran contends that he has bilateral hearing loss and tinnitus as a result of loud combat noise exposure during his service in Vietnam. As discussed in the Board’s March 2018 decision, the evidence includes the Veteran’s service treatment records (STRs), to include entrance and separation examinations. The Board also discussed VA examinations from July 2007 and July 2013, as well as addendum opinions provided in August 2007 and September 2013. In sum, the VA examiners provided negative nexus opinions for the hearing loss and tinnitus issues. In the March 2018 decision, the Board also discussed a private opinion from J.E., M.D., of the Shea Ear Clinic. Dr. J.E. provided a positive nexus opinion for the Veteran’s hearing loss and tinnitus issues, but the Board noted that Dr. J.E.’s opinion lacked rationale. Within the February 2019 JMPR, the parties noted that the provisions Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), were pertinent to the analysis regarding service incurrence in the Veteran’s case, given that the Veteran is a combat veteran. The parties agreed that remand was “warranted for the Board to provide an adequate statement of reasons or bases, properly applying section 1154(b) to the facts of this case, consistent with Collette.” Furthermore, the parties agreed that “upon remand, the Board must also address whether any further development is warranted in light of its findings regarding service incurrence.” In the August 2019 decision, the Board noted that the Veteran currently has bilateral hearing loss and tinnitus and found that “there is clear and convincing evidence showing that the current hearing loss and tinnitus disabilities were not incurred in service.” Within the November 2020 JMPR, the parties agreed “that the Board’s ‘clear and convincing evidence’ finding is not supported by adequate reasons or bases, warranting remand.” The parties noted that “the Board relied on the August 2007 and September 2013 VA examinations and opinions as clear and convincing evidence to rebut the § 1154(b) presumptions of in-service incurrence, but did not submit [the Veteran’s] lay statements about hearing loss and tinnitus in service to the examiners because it found those statements not credible.” Accordingly, the parties agreed that remand is warranted for the Board to provide an adequate statement of reasons or bases for its clear and convincing evidence finding. Therefore, the Board finds that remand is warranted to obtain new VA opinions, and examination if deemed necessary, that specifically address the concerns noted in the November 2020 JMPR regarding the hearing loss and tinnitus issues. Namely, the new nexus opinions should address the Veteran’s lay statements regarding reports of subjective hearing loss since 1966 and constant tinnitus since 1965, noted in the August 29, 2012, private treatment record from Dr. J.E. of the Shea Ear Clinic. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from August 2019 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for hearing loss and tinnitus) to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether the Veteran’s current hearing loss and tinnitus at least as likely as not (a 50 percent or greater probability): (a) had an onset in service or (b) are otherwise related to service. The examiner should consider all medical and lay evidence of record, specifically addressing the Veteran’s lay statements regarding reports of subjective hearing loss since 1966 and constant tinnitus since 1965, noted in the August 29, 2012, private treatment record from Dr. J.E. of the Shea Ear Clinic. 3. After the above development and any other development deemed necessary is completed, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.