Citation Nr: 21024168
Decision Date: 04/22/21	Archive Date: 04/22/21

DOCKET NO. 16-63 817
DATE: April 22, 2021

REMANDED

The claim of entitlement to service connection for hearing loss is remanded.

The claim of entitlement to service connection for tinnitus is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1975 to June 1978.

This appeal is from a November 2014 rating decision.

In December 2018, the Board denied these claims.  The Veteran appealed to the U.S. Court of Appeals for Veterans Claims, which granted a JMR (Joint Motion for Remand) asking the Court to vacate the denials and remand the claims to the Board for further consideration.

1. The claim of entitlement to service connection for hearing loss is remanded.

2. The claim of entitlement to service connection for tinnitus is remanded.

In the December 2018 decision, the Board failed to make a finding on the credibility of the lay statements that had been filed in support of the claim.  The JMR concluded that the Board’s error rendered the statements credible, and that an updated VA examination must be scheduled to obtain medical opinions that took the lay statements into consideration.  See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020).

In February and March 2017 statements, the Veteran’s mother and sibling each noted that they observed the Veteran having trouble with his hearing and asking for people to repeat themselves both during leave from and right after his service.  In his December 2014 notice of disagreement, the Veteran asserted that his hearing was affected by his MOS as a mortarman, which, read in the light most positive to the Veteran, does appear to suggest that he is asserting he had symptoms since service.  Finally, during the October 2014 VA examination, he reported that he had tinnitus for many years. The VA examiner must address these lay statements.    

The Veteran’s tinnitus is attributed to hearing loss, and is therefore intertwined with the hearing loss.  

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records.

2. After completion of directive 1, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that hearing loss and/or tinnitus is related to his service.  Noise exposure is conceded.  The examiner is asked to review the record and to elicit from the Veteran a detailed history of the onset of his symptoms.  

The examiner is advised that his family has reported that they observed the Veteran have difficulty hearing since his service (for example, by asking people to repeat themselves).  The Veteran has reported onset of hearing loss symptoms during service, and that he had tinnitus for many years.  These statements have been rendered both competent and credible, and are favorable to the Veteran’s claim.  Therefore, a negative opinion may not be rendered without discussion of this evidence.

The examiner is asked to consider whether hearing loss and tinnitus diagnosed following service is as likely as not due to noise exposure during service.  All opinions must be supported with explanation.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Gibson

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.