Citation Nr: 21029777 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-21 390 DATE: May 17, 2021 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service from November 1962 to November 1964. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in January 2021 the Court of Appeals for Veterans Claims (CAVC) vacated a portion of the Board's January 2020 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board relied on an inadequate VA medical opinion because it was based on an inaccurate factual premise; and failed to discuss the probative value of a private medical opinion. Pursuant to the JMPR, the matter is remanded for further development. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The matters are REMANDED for the following action: 1. BACKGROUND INFORMATION FOR REGIONAL OFFICE (RO) ADJUDICATOR: This remand is pursuant to a Court order. Addendum opinions are needed to fully and fairly evaluate the Veteran's claims. 2. Return the claims file to either the June 2013 or June 2017 VA examiner and request s/he re-review the claims file and respond to the inquiries below. If neither examiner is available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran's current hearing impairment diagnoses and their relationship to his service. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. THE EXAMINER IS ADVISED THAT THE VETERAN SERVED IN EUROPE FOR 12 MONTHS AS AN INFANTRYMAN AND HIS ACCOUNT OF SOME IN-SERVICE NOISE EXPOSURE IS THEREFORE PRESUMED CREDIBLE. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) What is the significance of a lack of audiological findings at the 3000 Hz level at both induction and separation examinations when determining whether the Veteran was exposed to acoustic trauma during service and whether the Veteran's sensorineural hearing loss and/or tinnitus was incurred in service? Please fully explain your opinion. b) Was the Veteran's current sensorineural hearing loss diagnosis incurred in service or caused by an in-service injury, event, or illness, to include in-service noise exposure? Please fully explain your opinion. c) Are there any other factors medically relevant to the cause of the Veteran's hearing loss and tinnitus? Please fully explain your opinion. d) Was the Veteran's tinnitus incurred in service or caused by an in-service injury, event, or illness, to include his sensorineural hearing loss? Please fully explain your opinion. e) Given the medical evidence in this case, your experience and knowledge, and the state of medical science, is the Veteran's account of his in-service noise exposure and the development of his current hearing impairment diagnoses consistent with the clinical findings? Please fully explain your opinion. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: * July 1962 audiological examination at induction and the September 1964 audiological examination at separation. When comparing the two audiological examinations, significant threshold shifts of at least 15 dB are noted at 1000 Hz and 2000 Hz in the Veteran's left ear. Also the Veteran's hearing at 3000 Hz are not indicated in either examination. See "STR Medical Photocopy," received August 17, 2012, pages 7-8, and 9-10 of 53. * The Veteran specifically denied "running ears" or ear trouble on his September 1964 report of medical history at separation. See above. * May 2013 private audiological examination results and opinion. The examiner diagnosed the Veteran with bilateral normal sloping to profound mixed hearing loss that was at least as likely as not the result of repeated exposure to military gunfire without the use of hearing protection. See "Medical Treatment Record Non-Government Facility," received July 1, 2013. * June 2013 VA medical examination report and opinion. The examiner noted no evidence of a change in hearing between the Veteran's induction and separation audiological examinations. The examiner opined the Veteran's current sensorineural hearing loss and tinnitus were not incurred in service. See "C&P Exam," received July 16, 2013. * Non-VA April 2017 audiological examination results and opinion. The examiner diagnosed the Veteran with mild to severe binaural sensorineural hearing loss and occasional tinnitus. The examiner observed that the Veteran allegation that he had "no noise protection" while serving on active duty and that his current tinnitus and hearing loss was incurred in service. See "Medical Treatment Record Non-Government Facility," received May 4, 2017. * June 2017 VA medical examination report and opinion. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus, but opined that the Veteran's hearing loss was not incurred in service because the Veteran's separation examination did not indicate a shift in hearing during service and that his tinnitus was not incurred in service because the Veteran reported the onset of tinnitus approximately 8 years previously. See "C&P Exam," received June 20, 2017. * The September 2017 notice of disagreement (NOD) the Veteran described his noise exposure during service and the onset of his hearing loss and tinnitus. See "NOD," received September 27, 2017 (Veteran reporting he served as crewmember on an armored personnel carrier and was exposed to noise and weapons fire and then began to have hearing loss and tinnitus). * November 2019 Board hearing testimony. The Veteran described noticing hearing loss approximately five to ten years after service; the onset of tinnitus approximately 15 years after service; and a lack of noise exposure at his post-service employment at a rubber-making plant. See "Hearing Transcript," received November 4, 2019. * CAVC decision explanations for why the June 2017 medical opinions were inadequate. See "CAVC Decision," received January 8, 2021. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 3. Following the review and any additional development deemed necessary, readjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.