Citation Nr: 21024948 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-29 228 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for a low back disability prior to December 22, 2017 is denied. Entitlement to a rating of 20 percent, but no higher, from December 22, 2017 is granted. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected low back disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Prior to December 22, 2017, the Veteran’s low back disability manifested, at worst, in forward flexion of 65 degrees and combined range of motion of 160 degrees. There was no evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour and no evidence of ankylosis. 2. From December 22, 2017, the Veteran’s low back disability manifested in guarding resulting in abnormal gait. The disability did not manifest in forward flexion of 30 degrees or less, nor did it manifest in ankylosis. 3. The preponderance of the evidence is against a finding that the Veteran’s right hip disabilities were caused by or incurred in service, to include as secondary to a service-connected low back disability. CONCLUSIONS OF LAW 1. Prior to December 22, 2017, the criteria for entitlement to a rating in excess of 10 percent for a low back disability have been not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5242 (2019). 2. From December 22, 2017, the criteria for entitlement to a rating of 20 percent, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5242 (2019). 3. The criteria for entitlement to service connection for a right hip disability, to include as secondary to a service-connected low back disability, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1971 to May 1974. This case comes on appeal of May 2014 and May 2016 rating decisions. The Veteran testified before the Board at a February 2020 video hearing. These matters were previously before the Board in May 2020. At that time, the Board remanded the case for additional development. Regarding the issues decided below, there has been substantial compliance with the Board’s remand instructions. Increased Rating 1. Entitlement to an increased rating in excess of 10 percent for a low back disability prior to October 23, 2020, and in excess of 20 percent thereafter Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The AOJ first granted entitlement to service connection for a low back disability in a January 1975 rating decision. The Veteran filed the present claim in March 2016. At the time of the claim, the Veteran’s low back disability was rated at 10 percent. Subsequent to the Board’s remand, the AOJ granted an increased rating of 20 percent, effective October 23, 2020. As this represents only a partial grant of benefits sought, the issue remains on appeal. In evaluating the disability, the Board must consider the propriety of the rating throughout the period on appeal. In other words, the Board will consider whether the Veteran is entitled to a rating in excess of 10 percent from the date of the claim to October 23, 2020, and in excess of 20 percent from October 23, 2020. The Veteran’s low back disability is rated as degenerative disc disease under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Rating Formula). Under the Rating Formula, in pertinent part, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abdominal kyphosis. The provisions of a 30 percent rating are specific to conditions of the cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine measuring to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. To warrant a rating of 50 percent, there must be unfavorable ankylosis of the entire thoracolumbar spine. To warrant a rating of 100 percent, there must be unfavorable ankylosis of the entire spine. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). However, when a Veteran’s symptoms, to include as due to flare-ups, result in functional loss equivalent with that contemplated by ankylosis, the criteria for a rating based on ankylosis may be met by these symptoms. Chavis v. McDonough, No. 18-2928 (2021). An alternative rating for spinal conditions is available under Diagnostic Code 5243 when there is a diagnosis of intervertebral disc syndrome (IVDS). Under Diagnostic Code 5243, the rating for IVDS is dependent upon the total duration of incapacitating episodes due to IVDS in the prior 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the prior 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the prior 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the prior 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the disability will be evaluated for each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. As was noted above, the Veteran filed the present claim in March 2016. He underwent a VA low back examination in April 2016. There, the examiner reported a diagnosis of lumbosacral strain and degenerative arthritis of the spine. On physical examination, the Veteran had forward flexion to 70 degrees, with a total range of motion of 185 degrees. The Veteran exhibited pain on all ranges of motion and had evidence of pain with weight bearing. The Veteran reported that he could not do repetitive use testing due to pain. Although the examiner acknowledged that the Veteran may have additional functional loss due to flare-ups and repeated use over time, the examiner reported being unable to describe such functional loss without resort to mere speculation. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal with no muscle atrophy and there was no ankylosis. Reflex testing was normal. There was decreased sensation in the left side extremities and positive straight leg testing on the left side. The Board notes that the Veteran is separately service-connected for radiculopathy of the left lower extremity. The examiner reported a diagnosis of IVDS but stated that the condition had not resulted in any prescribed bed rest in the prior 12 months. The Veteran then underwent a new VA examination in December 2017. At that time, the Veteran described daily pain that was constant. He reported that back pain limited his ability to walk for extended periods, lift heavy objects, or stand for prolonged periods. He described flare-ups as simply “more pain.” On physical examination, the Veteran had forward flexion to 70 degrees, with a total range of motion of 160 degrees. The Veteran exhibited pain on all ranges of motion and had evidence of pain with weight bearing. He was able to perform repetitive use testing and demonstrated no additional functional loss with repetitions. The examiner reported being unable to describe additional functional loss due to flare-ups in terms of range of motion without resorting to mere speculation. The Veteran demonstrated no muscle spasms, but did demonstrate guarding resulting in abnormal gait, described as a slow, antalgic gait. Muscle strength testing was normal, aside from a mild reduction in left great toe extension. Reflex and sensory examinations were normal. Straight leg testing continued to demonstrate mild left sciatic radiculopathy. There was no muscle atrophy and no ankylosis. The examiner reported a diagnosis of IVDS but stated that the condition had not resulted in any prescribed bed rest in the prior 12 months. The Veteran then underwent another VA examination in April 2019. At that time the Veteran reported continued, daily low back pain that limited his ability to walk for extended periods, lift heavy objects, or stand for prolonged periods. He did not report flare-ups, but described being easily fatigued. The examiner was unable to perform range of motion testing; the Veteran reported pain in his back and a sense of unsteadiness with trying to bend and was therefore unable to complete that portion of the examination. According to the examiner, there was no muscle spasm. The Veteran did have guarding, but it did not result in abnormal gait or spinal contour. Muscle strength testing was normal with no muscle atrophy. Reflex and sensory examinations were normal. Although straight leg testing was negative, the examiner found continued mild sciatic radiculopathy on the left side. There was no ankylosis and the examiner reported that the Veteran did not have a diagnosis of IVDS. In February 2020 testimony before the Board, the Veteran stated that he experienced low back pain every day, but also reported flare-ups two-to-three times per day for up to an hour during which he would be unable to stand up. He stated that he could hardly bend at all when in pain. Due to the inconsistency in the record regarding flare-ups, as well as in consideration of the United States Court of Appeals for Veterans Claim’s (Court) ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board remanded the claim in May 2020 to afford the Veteran a new examination. The Veteran then underwent an examination in October 2020. At that time, the Veteran reported that he did not experience flare-ups. On physical examination, he had forward flexion to 60 degrees, with total range of motion of 145 degrees. There was pain noted on all ranges of motion, as well as with weight bearing. The Veteran was able to complete repetitive use testing with no additional loss of function. However, the examiner opined that, based on the Veteran’s descriptions, pain on repetitive use would cause additional functional loss, limiting forward flexion to 55 degrees and total range of motion to 120 degrees. The examiner reported guarding resulting in abnormal gait. Muscle strength testing was normal with no atrophy and no ankylosis. Reflex and sensory examinations were normal. Straight leg testing continued to indicate mild left sciatic radiculopathy. The examiner reported a diagnosis of IVDS but stated that the condition had not resulted in any prescribed bed rest in the prior 12 months. Additional medical records document continued complaints of low back pain throughout the period on appeal, but do not specifically speak to the elements of the rating criteria. Based on the foregoing, the Board finds that a rating of 20 percent, but no higher, is warranted from December 22, 2017. This was the date on which it became factually ascertainable that the Veteran’s symptoms included guarding that resulted in abnormal gait. This symptom is contemplated by the 20 percent rating criteria, as discussed above. The Board acknowledges that the April 2019 examiner reported that guarding did not result in abnormal gait. However, in light of the Veteran’s inability to perform the full course of examination at that time, it is unclear whether the examiner had the complete information necessary to make those findings. Given that the Veteran once again demonstrated guarding resulting in abnormal gait at the October 2020 examination, the Board resolves all reasonable doubt in the Veteran’s favor to find that the 20 percent rating is warranted from December 22, 2017 forward. A rating in excess of 20 percent is not warranted during this period. At no point was the Veteran’s forward flexion of the thoracolumbar spine found to be 30 degrees or less. The Veteran has also never been found to have ankylosis of the entire thoracolumbar spine, whether favorable or unfavorable. The Board acknowledges the Veteran’s testimony that he can hardly bend at all when in pain, however, his examination results have shown at least some ability to do so. To the extent that the Veteran was unable to perform range of motion testing at his April 2019 examination, this inability was caused, at least in part, by unsteadiness. There is insufficient evidence to demonstrate that the Veteran’s thoracolumbar spine was completely stiffened or fixed, as would be the case with ankylosis. The Board has also considered the Veteran’s inconsistent reporting as to whether symptoms during flare-ups might warrant a higher rating. Notably, at his most recent examination, the Veteran reported that he did not experience flare-ups. In his Board testimony, as well as at other examinations, the Veteran has reported that his pain is constant, but gets worse multiple times per day for up to an hour. Here, the examiners have acknowledged the Veteran’s pain on all ranges of motion, and, at the most recent examination, the examiner opined that pain on repeated use over time would cause additional functional loss. Given the Veteran’s reports that the low back condition limited his ability to walk or stand for extended periods, the Board considers additional symptoms due to pain to have been adequately contemplated in the October 2020 examiner’s estimates of additional functional loss with repeated use. The examiner found that pain contributed an additional loss of 5 degrees of forward flexion. Applying this calculation to previous examinations, the Veteran’s range of motion would not meet the criteria for a rating in excess of 20 percent. Regarding the period between the Veteran’s March 2016 claim and the December 22, 2017 examination, the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted. The Veteran’s forward flexion was not limited to 60 degrees or less, even when considering an estimation of additional functional loss due to repeated use over time as described above. Moreover, total range of motion was 185 degrees. The April 2020 examiner estimated an additional loss of 25 degrees of total range of motion due to pain on repeated use over time. Applying that estimation to the April 2016 examination, total range of motion would be 160 degrees, which is contemplated by the 10 percent rating criteria. Prior to December 22, 2017, there was no evidence of guarding or muscle spasm of the lower spine to warrant a higher rating. In light of reported diagnoses of IVDS, the Board has also considered whether a higher rating is available under Diagnostic Code 5243. In this case, however, the Veteran has not been found to have any incapacitating episodes requiring bedrest. Accordingly, a compensable rating under Diagnostic Code 5243 does not apply. The Board also notes that, effective February 7, 2021, VA adopted new regulations concerning musculoskeletal disabilities. Although those new regulations include changes in the definitions of Diagnostic Codes 5242 and 5243, they do not affect the overall rating criteria; therefore, there is no effect as it pertains to the evaluation of this claim. Thus, based on the foregoing, the Veteran’s low back disability symptoms do not warrant a rating in excess of 10 percent prior to December 22, 2017. From December 22, 2017, the Veteran’s low back disability warrants a rating of 20 percent, but no higher. Service Connection 2. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected low back disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Moreover, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected as well. For chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran filed the present claim in March 2016. In his claim, and in testimony before the Board, the Veteran has explicitly stated that he did not experience a right hip injury during service. Instead, he alleges that his right hip disability was caused or aggravated by his service-connected back disability. Indeed, there is no evidence of an in-service injury or incident regarding the right hip, therefore, the Board proceeds in evaluating this claim for secondary service connection. Medical records and VA examinations demonstrate that the Veteran has a current diagnosis of degenerative arthritis of the right hip, as well as a right hip labral tear. Accordingly, the Veteran has met the first requirement of service connection. At issue is whether the disability was caused or aggravated by a service-connected condition. The Veteran underwent a VA examination in April 2016. However, at that time, the examiner only provided an opinion that the Veteran’s right hip pain was less likely than not related to his back condition. The examiner did not provide any rationale for this opinion, nor did the examiner address the Veteran’s diagnosed right hip disabilities. In light of this due process error, the Board remanded the claim to afford the Veteran a new examination. The Veteran then underwent a new VA examination in October 2020. At that time, as was noted above, the examiner reported diagnoses of degenerative arthritis and labral tear. The examiner opined, however, that the right hip disabilities were not caused or aggravated by the Veteran’s service-connected disabilities, to specifically include his low back disability and associated left lower extremity radiculopathy. By way of rationale, the examiner explained that August 2016 imaging reports demonstrated only mild degenerative arthritis in the hips. Given the mild nature of these symptoms, they were consistent with the natural aging process and the Veteran’s activities since exiting military service. Thus, considering the Veteran’s stated history of the disability, the physical examination, and review of the Veteran’s records, it was less likely than not that the right hip disabilities had been caused or aggravated by the Veteran’s low back disability. The examiner also reported that, specific to the Veteran’s left lower extremity radiculopathy, available medical evidence indicated that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity or joint. The examiner’s opinion is supported by sufficient medical rationale, therefore the Board considers it to be adequate. There is no probative evidence of record in favor of a finding that the Veteran’s right hip disability was caused or aggravated by a service-connected condition. The Board acknowledges the Veteran’s hearing testimony stating that his doctor had told him that his hip disability was caused by his back condition. The Board notes that the Veteran is competent to relay discussions he has had with his medical providers, however, as a layperson he is not competent to provide medical opinions on his own. Assuming as true the Veteran’s doctor had this discussion with the Veteran, the opinion is afforded little probative weight, as there is no reported explanation or rationale supporting the conclusion. If the Veteran is able to obtain a written opinion from his doctor explaining why the right hip condition is causally related to a service-connected disability, he is invited to submit it along with a supplemental claim. However, based on the record, the preponderance of the evidence is against a finding that the Veteran’s right hip disability was caused or aggravated by a service-connected disability. Moreover, as was discussed above, there is no evidence that the right hip disability was caused by or incurred in service. As the preponderance of the evidence is against these findings, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. In its May 2020 decision, the Board remanded the issues of entitlement to service connection for hearing loss and tinnitus because earlier examination opinions had not been supported by adequate medical rationale. The Board also noted that there had been threshold shifts of 10-15 decibels on the Veteran’s audiological evaluations from the beginning to the end of service. Furthermore, the Veteran testified that he had been exposed to jet fuel during service and submitted medical treatises regarding relationships between exposure to jet fuel and hearing problems. The Board determined a new medical opinion was necessary that addressed all of these considerations. The AOJ obtained a medical opinion in October 2020. In that opinion, the examiner stated that the Veteran’s most recent hearing loss examination in 2013 only showed that the Veteran met the VA criteria for a hearing loss disability in the right ear. According to the examiner, since the most recent examination did not show a diagnosis of bilateral hearing loss for VA purposes, it was less likely than not that bilateral hearing loss was related to service. The AOJ requested an addendum opinion in November 2020, in part, because the examiner’s finding that the Veteran did not have a bilateral hearing loss diagnosis was erroneous. In response, the examiner stated that the October 2013 VA examination showed normal to mild sensorineural hearing loss in the right ear and normal hearing thresholds in the left ear, and that the Maryland CNC score of 92 percent in the left ear was the only hearing loss for VA purposes in the left ear. The examiner also stated that “many research articles were submitted and reviewed which show a causal relationship between jet fuel exposure and hearing loss.” The examiner reported that there were no significant threshold shifts when comparing the Veteran’s 1971 audiological evaluation to his 1974 exit evaluation. The evidence did not show hearing loss during service in either ear. The Board notes several problems with his medical opinion. First, the Board wishes to reiterate that the evidence of record shows a clear diagnosis of bilateral hearing loss based on VA regulations. Indeed, under 38 C.F.R. § 3.385, “impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” Here, an October 2012 VA hearing loss examination showed VA hearing loss in the right and left ears by virtue of auditory thresholds of 26 decibels or greater in at least three frequencies. In the October 2013 examination discussed above, the Veteran had right ear hearing loss as demonstrated by auditory thresholds above 26 decibels in all frequencies tested, as well as a Maryland CNC Test of 86 percent. Although the Veteran’s left ear auditory thresholds were below 26 decibels, he was found to have left ear speech recognition of 92 percent, which qualifies as a hearing loss disability under 38 C.F.R. § 3.385. Thus, all of these examination results demonstrate a bilateral hearing loss disability for VA purposes. Additionally, in its prior remand, the Board specifically requested that the examiner address the threshold shifts of 10 and 15 decibels between the Veteran’s audiological evaluation at the beginning of service in 1971 and his audiological evaluation upon separation from service in 1974. Here, the examiner summarily dismissed any significant threshold changes without any explanation. In light of the documented shifts, as well as the Veteran’s conceded in-service noise exposure, on remand, a medical opinion should be obtained providing an explanation as to why the Veteran’s audiological threshold shifts during service should or should not be considered significant. Finally, the Board specifically instructed the AOJ to obtain an opinion that addressed the medical treatise information the Veteran submitted regarding the relationship between exposure to jet fuel and hearing problems. In the October and November 2020 opinions, the examiner stated that the submitted literature discussed a causal relationship between exposure to jet fuel and worsened hearing loss. Although brief, this commentary appeared to suggest that there may be merit to this theory of entitlement. However, the examiner went on to find no nexus between hearing loss and service. Thus, the examiner appeared to dismiss the medical literature without any explanation as to why. On remand, the medical opinion obtained should address this medical literature in conjunction with the nature of the Veteran’s service. The examiner should then opine whether it is at least as likely as not that the Veteran’s hearing loss disability was caused by in-service exposure to jet fuel. Although the Veteran has a documented bilateral hearing loss disability for VA purposes, his most recent hearing loss examination occurred eight years ago. Given this lapse of time, a new examination showing how the Veteran’s hearing loss has progressed, if at all, may prove helpful in evaluating the etiology of the disability. Therefore, the Veteran should be afforded a new examination. The Board notes, however, that if the Veteran is for some reason unable to attend a new examination, the AOJ should still obtain the medical opinions requested in this remand. Furthermore, additional examination may result in more information regarding the etiology of the Veteran’s documented tinnitus. Accordingly, the issue of tinnitus is inextricably intertwined and must be remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA hearing loss and tinnitus examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. With respect to the Veteran’s documented bilateral hearing loss and tinnitus disabilities, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner must assume as true that the Veteran did not enter service with a hearing loss disability in either ear. The examiner should then specifically address the following: - The hearing threshold shifts between the September 1971 in-service hearing examination and the April 1974 separation examination; the examiner should explain whether these threshold shifts should or should not be considered significant, with supporting rationale. - The VA article and medical treatise article submitted by the Veteran in February 2020 describing a causal relationship between exposure to jet fuel and later hearing problems; the examiner should discuss if this literature relates to the Veteran’s current disability and the nature of his service in considering whether there is an etiological relationship between the two The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. (Continued on Next Page) 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.