Citation Nr: 21030007 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-17 160 DATE: May 17, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Unites States Army from February 1979 until his honorable discharge in August 1985. He then served in the United States Army Reserve and Missouri Army National Guard from August 1985 through February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2020, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). In October 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain outstanding service records and to obtain a new VA examination addressing the Veteran's claims of hearing loss and tinnitus, which the RO accomplished. The case now returns to the Board. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. As part of the Board's October 2020 remand, it requested the RO to obtain a new VA examination addressing the Veteran's bilateral hearing loss, which he claimed had worsened. The examiner was asked to opine as to whether the Veteran had bilateral hearing loss and provide an opinion addressing the etiology of any hearing loss, to include addressing the theory of delayed onset that was mentioned in a July 2015 VA audiologic examination. The RO obtained an updated audiologic examination in February 2021 from a VA-contracted examiner who opined that the Veteran's bilateral-hearing-loss test results did not meet the standards of a "disability" under VA regulations. See 38 C.F.R. § 3.385 (defining the criteria for service connection for hearing loss for purposes of service connection). Thus, the examiner did not offer an opinion on the etiology of any hearing loss. An unusual situation is now present. Previously, a July 2015 VA-contracted examiner diagnosed the Veteran with bilateral hearing loss based on the audiologic test results at that time, which met the standards of a "disability" under VA regulations. See id. The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran's July 2015 audiologic test results do reveal bilateral hearing loss, but the opinion rendered with that examination is not sufficient at this time based on the conclusory rationale. Accordingly, the Board finds remand is required to obtain an addendum opinion addressing the Veteran's bilateral hearing loss based on the July 2015 VA examination. 2. Service connection for tinnitus is remanded. As part of the February 2021 VA-contracted examination, the examiner also addressed the Veteran's tinnitus, opining that it was at least as likely as not related to his bilateral hearing loss. Thus, these claims are inextricably intertwined. Remand is appropriate on this claim based on what occurs with the Veteran's claim for service connection for bilateral hearing loss. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the February 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss, as identified by the July 2015 VA-contracted examination, had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to loud, excessive noise from guns, grenades, and mortars. (b.) Please address the significance, if any, between the Veteran's July 2015 VA-contracted examination (which documented a bilateral hearing loss disability for VA regulation purposes) and the February 2021 VA-contracted examination (which did not document a bilateral hearing loss disability for VA regulation purposes). Are these examination results able to be reconciled? Please explain. In rending his or her opinions, the examiner must address the following, in addition to any other relevant evidence: (a.) The American College of Occupational Medicine Noise and Hearing Conservation Committee's statement discussing delayed onset hearing as cited within the July 2015 VA-contracted examiner's etiology opinion as to bilateral hearing loss. The full article is available within the Veteran's claims file (received by VA on February 21, 2017). The examiner is advised that the Veteran's military occupational specialty (MOS) as an infantryman is classified by the Department of Defense's Duty MOS Noise Exposure Listing as an MOS with a "high" probability of noise exposure. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his hearing loss, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a hearing disability in service or the assertion that an in-service event, injury, or illness led to hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. 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). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.