Citation Nr: 21022892 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-28 660A DATE: April 19, 2021 REMANDED Entitlement to service connection for bilateral tinnitus, to include as secondary to service-connected bilateral hearing loss, is remanded. REFERRED MATTER – NOTICE OF APPEAL RIGHTS The Board observes that in a July 2020 rating decision, the agency of original jurisdiction (AOJ) implemented the Board’s November 2019 award of service connection for a bilateral hearing loss disability. The AOJ assigned an initial noncompensable (zero percent) rating effective January 8, 2016. In a letter received in January 2021, the Veteran petitioned the Board to address the propriety of the initial noncompensable rating assigned by the AOJ. The Board has no jurisdiction in this appeal to do so at this time, as the Veteran has not initiated an appeal by filing a correct form. That stated, the Board observes that the AOJ’s August 14, 2020 notice letter informing the Veteran of its July 2020 rating decision did not provide any information as to how to appeal the assigned initial rating or the assigned effective date. Rather, the letter incorrectly referred the Veteran to the information attached to the Board’s prior November 2019 decision if he wished to seek further review. Indeed, the matters of the assignment of an initial rating and the assignment of an effective date for the award of service connection are downstream issues from the Board’s service-connection determination, and are separately appealable issues. This matter is referred to the AOJ for all appropriate action—specifically to notify the Veteran of hs appeal rights concerning the AOJ determinations as to the initial rating and effective date assigned for service-connected hearing loss, made in the July 2020 rating decision. The Veteran and his representative are encouraged to follow up with the AOJ on this matter, or review VA’s appeal options accessible on VA’s website. REASONS FOR REMAND The Veteran served in the New Jersey Army National Guard from June 1971 to June 1977 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Veteran testified before the undersigned at an October 2019 videoconference hearing. A transcript of the hearing has been associated with the Veteran’s file. This issue was previously before the Board in November 2019, at which time it was remanded for further development. Unfortunately, another remand is required. The Veteran contends that he has bilateral tinnitus as a result of in-service noise exposure. Specifically, he attributes his tinnitus to the duties associated with his military occupational specialty (MOS) as a radio relay operator. In the alternative, he contends that his tinnitus is caused or aggravated by his service-connected hearing loss disability. The Veteran has consistently stated he first noticed tinnitus in the mid- to late 2000s, decades after service. In-service noise exposure has already been established, and service-connection based on such noise exposure for his bilateral hearing loss disability has already been awarded. In its November 2019 decision, the Board directed the AOJ to obtain a medical opinion addressing the etiology of the Veteran’s tinnitus on both a direct and secondary basis. In a December 2020 opinion, the reviewing clinician opined that the Veteran’s bilateral tinnitus was less likely than not incurred in or caused by his active duty service and was not proximately due to or aggravated by his service-connected bilateral hearing loss. With respect to direct service connection, although the Board asked the reviewing clinician to consider the in-service H2 profile on a March 1977 retention examination, the clinician stated he did not find the notation in the records, and therefore did not review it. With respect to secondary service-connection, the clinician appeared to assume that for aggravation to be established, the Veteran’s tinnitus must have existed prior to hearing loss. The Board wishes to make clear that tinnitus need not pre-date the onset of hearing loss for service connection to be awarded on the basis of aggravation. Remand is warranted so that an adequate medical opinion addressing etiology of the Veteran’s bilateral tinnitus can be obtained. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an clinician other than the December 2020 examiner addressing the etiology of Veteran’s tinnitus. The examiner should review the entire record, to specifically include the Veteran’s March 1977 retention examination (which includes an H2 PULHES profile), his October 2016 VA audiological examination, and the medical opinions addressing hearing loss provided by Dr. J.T. in April 2017, and Dr. Dr. J.K. in October 2019. After review of the record, the examiner should provide responses to the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus is related to in-service noise exposure from duties performed as a radio relay operator? (b.) Is it at least as likely as not that the Veteran’s tinnitus is proximately caused by his service-connected bilateral hearing loss? (c.) Is it at least as likely as not that the Veteran’s tinnitus was aggravated beyond its natural progression by his service-connected bilateral hearing loss? All opinions should be supported with a medical explanation or rationale. If the opinions cannot be provided without an in-person examination, such should be scheduled. 2. Readjudicate the appeal. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.