Citation Nr: 21024121 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-04 599 DATE: April 22, 2021 REMANDED Service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to February 1970. This matter originally came before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter has previously been remanded by the Board for further development, most recently in November 2020. This matter is again before the Board. Service connection for bilateral hearing loss is remanded. The Veteran believes that service connection for bilateral hearing loss is warranted. See April 2021 Appellate Brief. The Board notes that it previously found every hearing loss examination prior to November 2020 inadequate. See March 2019 BVA Decision; November 2020 BVA Decision. A new hearing loss examination took place in December 2020. See January 2021 C&P Exam. The Board finds the examination inadequate, among other reasons, because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other evidence, the examination did not consider/was unable to consider the Veteran’s report that he first noticed hearing loss when he returned from Vietnam. See March 2011 Medical Treatment Record. Additionally, the Veteran has presented evidence that suggests a relationship between hearing loss and diabetes. The Veteran is already service connected for diabetes and has a current diagnosis of bilateral hearing loss. See April 2020 Rating Decision – Codesheet; March 2011 Medical Treatment Record. However, there is currently no medical opinion concerning whether the Veteran’s hearing loss is/was caused by or aggravated by his service-connected diabetes. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For these reasons, a remand is needed for a new medical opinion. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to July 2020. 2. Schedule an appropriate VA medical opinion for the Veteran’s hearing loss. If the examiner finds that a VA examination must be provided prior to giving an opinion, such an examination should be scheduled. The examination may be conducted via telehealth or another similar service due to any social distancing restrictions. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) For each ear, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss is related to service, including but not limited to, hazardous noise exposure and/or conceded herbicide agent exposure during service in Vietnam? (B) For each ear, is it at least as likely as not (a 50 percent or greater probability) that the hearing loss is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? (C) For each ear, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (D) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) For each ear, is it at least as likely as not (a 50 percent or greater probability) that any sensorineural hearing loss manifested to a compensable degree within one year following the Veteran’s separation from service? The examiner should ask the Veteran how soon it was after returning from Vietnam that he first noticed hearing loss. Was it while still in service, within one year following service, or a later date? See August 1975 Certificate of Release. The examiner should also ask the Veteran if symptoms of hearing loss have continued since the time that he first noticed the hearing loss. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A record showing the Veteran’s service-connected disabilities. See April 2020 Rating Decision – Codesheet. (2) The Veteran’s submission of evidence showing that the benefit of the margin of error that VA audiologists use was not applied to the in-service audiograms. If it was applied, there would be a significant loss at every frequency. The Noise Control Act went into effect for occupational noise in 1972. Medical research showed a link between diabetes and hearing loss. Diabetes was known to cause microvascular damage. People with diabetes had twice the hearing loss of those without diabetes. Medical research showed the long-term effects of acoustic overload and trauma. Even with apparent recovery of normal hearing after acoustic trauma, there could be widespread and ongoing damage to the cochlear hairs and their nerves, only becoming manifest over time. There could be a delayed hearing loss effect from acoustic trauma. Further information is provided. See April 2021 Appellate Brief. (3) A medical record from December 2020 showing that the Veteran was a light vehicle driver and was in the infantry during service. He sat next to a mortar tube and experienced firing all night. He served in Vietnam and was a sharpshooter with the M-14 rifle with a rifle bar. He was exposed to heavy artillery and mortars every day. He dealt with considerable noise exposure during service. His tinnitus began in 1971. See January 2021 C&P Exam. (4) A medical record from November 2019 showing that the Veteran denied recreational noise exposure. The Veteran reported that during service, he slept next to a mortar tube with continuous shooting all night long. He also heard loud artillery rounds. The hearing loss made it hard to be a carpenter and a police officer. Tinnitus was found to be related to service based on the Veteran’s report of significant noise, longstanding tinnitus, and because he was in the infantry where there was a high probability of hazardous noise exposure. See November 2019 C&P Exam. (5) Medical records showing that the Veteran worked for General Electric before service. He worked for eight years as a machinist throughout most of the 1970s. The Veteran had a body mass index of 28.8. See June 2017 CAPRI. (6) Service records showing M-14 rifle and grenade badges, that the Veteran was a light vehicle driver, and that the Veteran served in Vietnam. See March 2015 Military Personnel Record. (7) A medical record from February 2011 showing that the Veteran first noticed hearing loss when he returned from Vietnam. During service, he drove a Jeep. There was no family history of hearing loss. There was no history of recreational noise exposure. See March 2011 Medical Treatment Record. (8) The Veteran’s report that during service, he dealt with artillery fire from both sides. He witnessed a rocket hit a helicopter pad and blow it up. The Veteran took part in attacks against the enemy. See August 2010 VA 21-0781; January 2010 Correspondence. (9) The Veteran’s report that during service, he was in a helicopter and subsequently took fire for a day and a night. He also witnessed lightning strike napalm buried with clay mores and saw everything blow up. He also witnessed incoming fire blow up the chopper maintenance building. He took additional fire at other times. See May 2001 Correspondence. (10) Service records showing audiograms upon entrance into service and around the time separation from service occurred. See June 2000 STR – Medical – Photocopy. (11) Medical records from 1978 and 1979 showing that the Veteran complained about worsening bilateral hearing loss for many years, and at 31 years old, had left ear hearing loss for six years. The Veteran did in fact have hearing loss. The fact that the Veteran was exposed to artillery fire was noted. Further information is provided. See August 1979 Medical Treatment Record. (12) A record showing that the Veteran remained on active duty for about three months after leaving Vietnam. See August 1975 Certificate of Release. (13) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. Address the medical research provided by the Veteran. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or due to the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, Associate 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.