Citation Nr: 21030724 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-08 529 DATE: May 19, 2021 ISSUE Entitlement to service connection for a bilateral hearing loss disability. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1970 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2020 Board video conference hearing. A transcript of this hearing has been associated with the claims file. The Board finds that further evidentiary development is required before the claims on appeal can be adjudicated 1. Entitlement to service connection for bilateral hearing loss disability is remanded. The Veteran claims service connection for his bilateral hearing loss disability. He asserts that his hearing loss is the result of his acoustic trauma in service. At the September 2020 videoconference hearing, the Veteran testified that he served as a military policeman while in service. While in his position he would visit the shooting range and did not always use hearing protection. He also testified that he was stationed at Kirtland Air Force Base, which is right next to an airport, where he was exposed to noise from the airplanes. The Veteran's personnel records indicate that the Veteran served as a military policeman and that he was stationed a Kirkland Air Force Base. The Board finds that the Veteran's assertions as to his acoustic trauma in service are generally consistent with his service as documented and described. Therefore, the Board considers the Veteran to be a reliable historian as to his in-service experiences and concedes acoustic trauma in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was afforded a VA audiological examination in February 2017. At that time the examiner diagnosed sensorineural hearing loss in the right ear. In the left ear the examiner diagnosed mixed hearing loss, which means there is both a conductive component and sensorineural component to the Veteran's hearing loss. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to service. In providing a rationale for both ears the examiner explained that the Veteran's enlistment and separation audiological examinations indicated normal hearing in both ears and no shift in hearing for the worse at any frequency from 1000 to 4000 Hz. Although the examiner had initially noted that there was no positive threshold shift greater than the normal measurement variability at any frequency between 500 and 6000 Hz, the examiner in giving further detail explained that the Veteran did have a shift in hearing at 500 Hz, however she explained that the shift was not consistent with hearing loss from noise exposure. According to the examiner the shift at 500 Hz could have been due to a number of factors including testing variability, background noise in the testing room, cerumen build- up or poor headphone placement. For the following reasons, however, the Board finds the February 2017 VA opinion to be inadequate. First, the February 2017 examiner in providing the same rationale for the Veteran's left and right ear, failed to address the fact that the Veteran was diagnosed with sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. The examiner failed to provide any explanation for the Veteran's diagnosis of mixed hearing loss, specifically why the conductive component of the Veteran's hearing loss was not related to the Veteran's active duty service. Next, the February 2017 examiner's opinion is not based on factually accurate reasoning. Specifically, in her opinion the examiner incorrectly stated that from the Veteran's entrance into service until separation he did not have any shift in hearing for the worse at any frequency from 1000 to 4000 Hz. The Board however notes that the record reflects that from the Veteran's September 1970 entrance examination to his May 1972 separation examination there were in fact threshold shifts in both ears at 1000, 2000 and 4000 Hz. The Board also notes that the Veteran was not tested at 3000 Hz at his entrance examination, so it is not possible to determine if there was a shift at this frequency. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Inadequate medical examinations include examinations that are not based upon a review of medical records or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 204 (2008). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Id. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Finally, at the September 2020 Board hearing the Veteran testified that he believed that his hearing loss disability has worsened since his last VA examination. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran last underwent a VA audiological examination in February 2017, he should be afforded a new VA examination to assess the current nature, extent and severity of his bilateral hearing loss disability. For the reasons explained above the Board finds that a remand is necessary to afford the Veteran a new VA examination and obtain an adequate medical opinion. The matters are REMANDED for the following action: 1. Obtain outstanding and ongoing VA treatment records. 2. Schedule the Veteran for an audiological examination to determine the nature and etiology of the Veteran's claimed bilateral hearing loss disability. The electronic claims file, to include this remand must be reviewed by the examiner. The examiner must indicate on the examination report that the case was reviewed. The examiner should provide an opinion addressing the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss disability (if found) was incurred in or aggravated by service to include his conceded acoustic trauma in service? The examiner's attention is directed to the September 2020 videoconference hearing testimony. The Veteran's assertions as to his in-service acoustic trauma and his symptoms should be noted and addressed by the VA examiner. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is asked to specifically address and provide a rationale for each disability diagnosed. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.