Citation Nr: 21026631 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-06 574 DATE: May 3, 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 U.S. Army from March 1964 to March 1966, to include service in Vietnam. His decorations include the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In September 2020, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. For the reasons set forth below, because the development sought has not been fully completed, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.) 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends that his hearing loss and tinnitus are due to noise exposure in service. In its September 2020 remand, the Board noted that the Veteran had been afforded a VA examination and opinion in connection with his claims in August 2017. The Board further noted that because the Veteran's in-service audiometric examinations were conducted prior to January 1, 1967, VA assumed that audiometric testing was conducted using American Standards Association (ASA) measurements, and that both entrance and separation audiological scores needed to be converted to current International Standards Organization-American National Standards Institute (ISO-ANSI) measurements by adding between 5 and 15 decibels to the recorded data. In the September 2020 remand, the Board noted that the August 2017 VA examiner did not convert the audiological scores as required before providing an opinion, and it converted the measurements accordingly. In its September 2020 remand directives, the Board ordered the AOJ to obtain updated copies of any VA treatment records and to obtain an addendum opinion from the August 2017 VA examiner. The Board instructed the examiner specifically to consider the Veteran's converted in-service audiometric scores, to address the fact that no audiometric data were recorded at 3,000 and 6,000 Hertz for either ear when the Veteran was examined for separation, and to discuss specifically whether, in the absence of audiometric data at 3,000 and 6,000 Hertz, it was possible to determine whether the Veteran's hearing was normal at those frequencies at the time of separation. In September 2020, the AOJ obtained an addendum opinion from the August 2017 VA examiner regarding the Veteran's hearing loss. The examiner noted the converted scores, but again offered a negative nexus opinion. The examiner reasoned that on enlistment in March 1966 the Veteran indicated normal hearing minus a 30-decibel loss at 500 Hertz for both ears, and that on separation "in April 2017" he indicated normal hearing bilaterally. The examiner also stated that considering that the rest of his hearing was within normal limits and that he denied any hearing loss on his separation examination, it was "assumed [that] these frequencies were most likely also within normal limits with no significant threshold shifts." The examiner further stated that there was "no reason to assume any differently as there [was] nothing in his records to indicate any hearing loss upon military separation," and that her opinion remained the same. Because the August 2017 VA examiner did not provide a nexus opinion regarding tinnitus in the September 2020 addendum, the AOJ obtained a further opinion from the examiner as to that disability in October 2020. The examiner offered a negative nexus opinion, reasoning that the Veteran indicated normal hearing thresholds on military separation, and that while 3,000 and 6,000 Hertz were not tested on separation, that did not impact the prior opinion regarding tinnitus. The examiner stated that there were no complaints of tinnitus in the Veteran's records, that he denied ear trouble on his separation questionnaire, and that he had denied tinnitus at an April 2017 examination. In a March 2021 post-remand brief, the Veteran's representative advanced argument to the effect that the VA examiner's opinion was deficient because, in part, it was based on an "assumption" that was not adequately supported by the examiner; namely, that frequencies not tested at the time of service separation could be assumed to be within normal limits. The Board agrees that the examiner's opinion was not fully supported. Although the examiner observed that the Veteran's hearing was found to be within normal limits at the frequencies tested at separation, and that he subjectively denied any hearing loss at that time, the examiner did not describe or cite to any medical principles or other authority in support of the "assumption" that the Veteran's hearing at the untested frequencies was "most likely" within normal limits at separation. Use of the word "assumed" calls into question whether the examiner was relying on speculation in support of the conclusion reached. In light of the above, the Board finds that an addendum opinion from another VA examiner is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (when VA undertakes to provide a VA examination and/or opinion, it must be adequate). Updated VA treatment records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to a qualified VA clinician other than the examiner who examined the Veteran in August 2017 and provided VA addendum opinions in September 2020 and October 2020. The examiner should review the record. After reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss and/or tinnitus had their onset in, or are otherwise attributable to, service, to include in-service noise exposure. In rendering the requested opinion, the examiner should consider that for service department examinations conducted prior to January 1, 1967, the Board ordinarily assumes that audiometric testing was conducted using ASA measurements and converts the results of such testing to current ISO-ANSI measurements by adding between 5 and 15 decibels to the recorded data. Applying the conversion to the audiometric data in the reports of the Veteran's November 1963 entrance examination and March 1966 separation examination yields the results set out on page 3 of the Board's September 2020 remand. The examiner should consider the findings of the August 2017 VA examination. The examiner should also address the fact that no audiometric data were recorded at 3,000 and 6,000 Hertz for either ear when the Veteran was examined for separation, and how that fact impacts his or her etiological opinions regarding hearing loss and tinnitus. The examiner should specifically discuss whether, in the absence of audiometric data at 3,000 and 6,000 Hertz, it is possible to determine whether the Veteran's hearing was normal at those frequencies at the time of separation, and whether it is possible to determine whether any threshold shifts occurred at those frequencies during service. If it is the examiner's opinion that it is likely that the Veteran's hearing at the untested frequencies was more likely than not within normal limits at separation, the examiner should specifically describe or cite to the medical principles or other authority that supports that conclusion. In arriving at his or her conclusions, the examiner should refrain from placing any reliance on the 2005 study from the Institute of Medicine, pertaining to delayed onset of hearing loss, which the August 2017 examiner relied on, in part, in forming her etiological opinions. The need for an in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as many be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.