Citation Nr: 21026175 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-20 727 DATE: April 30, 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 in the United States Army from January 1956 to January 1958. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing. The transcript is of record. Service Connection The Veteran contends that his current hearing loss and tinnitus are the result of in-service noise exposure. The Veteran submits that he volunteered as an instructor on the rifle range four hours per day for two years. See October 2017 Statement in Support of Claim; see also February 2021 Hearing Transcript. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Notably, in this case portions of the Veteran's service treatment records are not available as they have been destroyed by fire. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for bilateral hearing loss is remanded. In October 2017, the Veteran underwent a VA examination. See October 2017 VA Examination. The examiner stated that he could not render a medical opinion regarding the etiology of the Veteran’s right or left ear hearing loss without resorting to speculation. The examiner stated that the Veteran’s “responses were too variable to diagnose the severity and configuration of hearing loss.” In May 2019, the Veteran attended another VA examination. See May 2019 VA Examination. The examiner gave a negative opinion that the Veteran’s hearing loss was due to military service. The examiner noted that the Veteran had noise exposure during service as a rifle range instructor during service and was exposed to gun fire during reserve service. However, the examiner ultimately determined “based on the configuration of hearing loss, it is less likely than not that [the Veteran’s] hearing loss is associated with military noise exposure. The configuration is typical of presbycusis.” No further rationale was provided. The medical opinions of record are inadequate for adjudicative purposes. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the record contains a private Disability Benefits Questionnaire (DBQ) dated February 2017, from clinician J.B.M. who reported the Veteran's symptoms and opined that “his hearing loss is consistent with acoustic trauma and noise exposure.” However, clinician J.B.M. did not provide a clear conclusion linking the Veteran's symptoms to active service; thus, his opinion is inadequate for adjudicative purposes. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the VA examinations are inadequate based on the examiners’ failure to articulate an adequate rationale as well as the failure to consider all of the evidence of record, including the Veteran's reports of continuous hearing problems since discharge, when the opinions were rendered. As such, this matter must be remanded for an addendum VA medical opinion that contains adequate rationale and addresses all the evidence of record. 2. Entitlement to service connection for tinnitus is remanded. In October 2017, the Veteran underwent a VA examination for tinnitus. See October 2017 VA Examination. The examiner gave a negative opinion that the Veteran’s tinnitus was due to military service. The examiner opined that “tinnitus is not due to or a result of military acoustic trauma.” Furthermore, the examiner referenced an Institute of Medicine (IOM) study in 2006 that suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The examiner indicated that as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. In May 2019, the Veteran attended another VA examination. See May 2019 VA Examination. The examiner gave a negative opinion that the Veteran’s tinnitus was due to military service. The examiner opined that “the start of the reported tinnitus was 30 years ago which is most likely when the start of the Veteran’s normal hearing loss began and is therefore related to that rather than any military noise exposure.” The Board notes that the record contains a private Disability Benefits Questionnaire (DBQ) dated February 2017, from clinician J.B.M. who reported the Veteran's symptoms and indicated that the Veteran’s “tinnitus happens once a week and lasts for 2 minutes each time.” The examiner further stated that the Veteran’s “hearing loss is consistent with acoustic trauma and noise exposure.” However, clinician J.B.M. did not provide an opinion specifically as to the Veteran’s tinnitus; thus, his opinion is inadequate for adjudicative purposes. The Board finds that the VA examinations are inadequate based on the examiner's failure to articulate rationales as well as the failure to consider all of the evidence of record, including the Veteran's reports of continuous hearing problems since discharge. As such, this matter must be remanded for an addendum VA medical opinion that contains adequate rationale and addresses all the evidence of record. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Once the above has been completed to the extent possible, forward the claims file to a medical professional with appropriate expertise for an addendum VA medical opinion regarding the nature and etiology of the Veteran's hearing loss. The claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the examiner determines that another VA examination is necessary, one should be scheduled (or a telehealth interview if an in-person examination is not feasible). 4. Based on a review of the record, and a new examination if necessary, the reviewer must address the following: 5. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, including his conceded noise exposure? The examiner must address and reconcile, to the extent possible, the addendum VA opinion and the Veteran's complaints of continuous hearing difficulties since active duty service. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. In providing this opinion, the examiner must recognize the fact that no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. The examination report must include a complete rationale for all opinions expressed and a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus is related to his active service or is caused by or aggravated by military service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must specifically consider and discuss the Veteran's exposure to acoustic trauma in-service consisting of working in close proximity to artillery gunfire without ear protection and continuity of symptoms since service. The opinion and rationale should reflect such consideration. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. See October 2017 Statement in Support of Claim; see also February 2021 Hearing Transcript. (Continued on the next page)   If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.