Citation Nr: 21024081 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-57 248 DATE: April 22, 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 October 1969 to March 1972. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran’s notice of disagreement (NOD) was received in September 2017. The RO issued a statement of the case (SOC) in October 2017. The Veteran’s VA Form 9, substantive appeal to the Board, was received in November 2017. In September 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. With respect to the Veteran’s service connection claim for bilateral hearing loss, the evidence shows that hearing loss in the Veteran’s right ear pre-existing active duty service. In this regard, the Veteran was provided with audiometric testing as part of his entrance examination in August 1969. The entrance examination shows that the Veteran had hearing loss in the right ear of 40 dB in at least one of the required frequencies under VA regulations and the physician documented that the Veteran had defective hearing. Thus, the Veteran had a right ear hearing loss disability prior to military service. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The law provides that, if a disorder is established to have pre-existed service, and/or was present on entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Accordingly, the evidence must show that the Veteran’s right ear hearing loss was aggravated by the Veteran’s active duty service for service connection to be granted. With respect to the Veteran’s service connection claim for left ear hearing loss, the entrance examination does not reflect that the Veteran had a hearing loss disability as the audiometric results for the left ear in the August 1969 entrance examination reflect that the Veteran did not meet the requirements for a hearing loss disability under VA regulation. As a hearing loss disability was not noted on the entrance examination with respect to the left ear, he is presumed to have been in sound condition on entry into service with regard to left ear hearing loss. Accordingly, the evidence must show that the Veteran’s left ear hearing loss was caused by or related to the Veteran’s active duty service for service connection to be granted. The Veteran was provided with a VA examination and medical opinion in April 2017. The examiner determined that the Veteran’s bilateral hearing loss disorder is less likely than not caused by or a result of an event in military service. With respect to the right ear hearing loss, the examiner explained that the entrance examination showed a hearing loss in the right ear, the discharge examinations showed hearing loss in right ear, and it is consistent with today’s findings considering the time that has passed since his last test. With respect to the Veteran’s left ear hearing loss, the examiner explained that the Veteran’s hearing thresholds at the time of entrance and separation were within normal limits. According the American College of Occupational Medicine Noise and Hearing Conservation Committee, “a noise induced hearing loss will not progress once it is stopped.” The Board finds that the Aril 2017 VA medical opinion is incomplete as the VA examiner did not address the Veteran’s lay statements that he was not told he had hearing loss in his right ear and he believed that his hearing was normal when he entered active military service. The Veteran testified at the Board hearing that he thought the audiogram conducted at entrance into service was not accurate. The examiner also did not address that the Veteran was exposed to jet engine noise daily for one year, with inadequate hearing protection, and he testified at the Board hearing that he had no other noise exposure. Thus, a new VA examination and medical opinion is warranted. With respect to the Veteran’s service connection claim for tinnitus, the VA examiner in April 2017 provided the opinion that the Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss. Thus, the service connection claim for tinnitus is inextricably intertwined with the service connection claim for bilateral hearing loss. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA audiological examination and opinion with respect to his service connection claims for bilateral hearing loss and tinnitus. The claims file, including a copy of this REMAND, must be made available to the examiner, and the opinion should reflect that the claims file was reviewed in conjunction with the examination. The examiner should perform any medically indicated testing, including audiometric and speech recognition testing, and should note any reason for not reporting such test results. The examiner should document the nature, extent and severity of exposure to loud noise during and after service. The examiner must elicit from the Veteran a history of the symptoms of his hearing loss and tinnitus. After reviewing the record and examining the Veteran, the examiner should offer an opinion as to the following: a. Whether it is it at least as likely as not that the Veteran’s pre-existing right ear hearing loss disorder was aggravated (permanently worsened) beyond the natural progression of the disability beyond the natural progression of the disability as the result of exposure to acoustic trauma during the Veteran’s active duty service. The examiner should provide an explanation for all conclusions reached based on the evidence of record and medical principles. The examiner is specifically requested to address any shifts in puretone thresholds during active military service and that the Veteran was exposed to jet engine noise daily for one year, with inadequate hearing protection. The examiner should also consider and discuss the lay statements of record to include the onset and continuous nature of his hearing of his hearing loss and that he thought his hearing was normal when he entered active duty service, and he thought the audiometric results from the entrance examination is inaccurate. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.  b. Whether the Veteran’s current left ear hearing loss disorder is at least as likely as not (i.e., a fifty percent or greater probability) etiologically related to active military service to include any acoustic trauma. The examiner must provide an explanation for all conclusions reached based on the evidence of record and medical principles. The examiner is specifically requested to address any shifts in puretone thresholds during active military service and that the Veteran was exposed to jet engine noise daily for one year, with inadequate hearing protection. The examiner should also consider and discuss the lay statements of record to include the onset and continuous nature of his hearing of his hearing loss. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.  c. Whether it is at least as likely as not that the Veteran’s tinnitus had its onset in or is otherwise related to active military service to include acoustic trauma. The examiner must provide an explanation for all conclusions reached based on the evidence of record and medical principles. The examiner is specifically requested to consider and discuss the lay statements of record to include the onset and continuous nature of the Veteran’s tinnitus. (Continued on the next page)   If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.