Citation Nr: 21030751 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-46 049 DATE: May 19, 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. Marine Corps from June 1984 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 20.902. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran asserts that her bilateral hearing loss and tinnitus are related to her military service. Upon review of all evidence of record, the Board finds that additional development is needed prior to adjudication of the claims. In this regard, the Veteran was initially provided a VA examination in June 2013. The examination findings resulted in a diagnosis of bilateral hearing loss and tinnitus for VA purposes. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of an event in military service because her enlistment and separation audiological examination results were within normal limits. The RO denied the Veteran's claims in a September 2013 rating decision, relying on the June 2013 VA opinion. The Board finds this opinion inadequate because the examiner did not consider the Veteran's statements regarding her hearing issues, in-service noise exposure, and did not provide an etiology for her hearing loss and tinnitus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). The Board notes that the Veteran is competent to report symptoms of tinnitus during her period of service and since that time. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Charles v. Principi, 16 Vet. App. 370 (2002). The Board also notes that the Veteran's military occupational specialty (MOS) was an aircraft maintenance data analysis technician. See DD Form 214. At the March 2021 Board hearing, the Veteran testified that while on active duty she was exposed to aircraft engine noise for 8 hours per day. As such, in-service noise exposure has been conceded. The Veteran was afforded another examination in May 2016. However, upon examination, the Veteran was found not to have bilateral hearing loss for VA purposes and a negative nexus opinion on that basis as to bilateral hearing loss and tinnitus was provided. Most recently, the Veteran submitted private treatment records from Kaiser Permanente that link the Veteran's hearing issues with her military service, but the audiological examination results are illegible. Accordingly, a remand is needed for the agency of original jurisdiction (AOJ) to make efforts to obtain legible copies of any private treatment records that may be outstanding and to obtain a VA opinion that takes into consideration findings of the private audiologist. Further, the Board notes that in the June 2017 Statement of the Case (SOC) the AOJ relied on the Institute of Medicine (IOM) 2006 study regarding permanent hearing loss as a result of noise exposure to deny the Veteran's claims. The IOM study contains contradictory findings that cannot itself be the reasons or basis for a decision without an adequate medical opinion that addresses contradictory aspects of the IOM report. McCray v. Wilkie, 31 Vet. App. 243 (2019). Thus, a new VA opinion addressing the IOM study, including its contradictory aspects, as it relates to the Veteran's hearing issues, must be obtained. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records pertaining to the Veteran's hearing loss and tinnitus. 2. Contact the Veteran to secure the proper authorizations where necessary and make arrangements to obtain all the records of treatment or examination for her hearing loss and tinnitus from all the sources identified by the Veteran which are not already on file, including records from Kaiser Permanente. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After completing the above, obtain a VA medical opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus from a qualified audiologist. The examiner must review the entire claims file and a copy of this Remand. All indicated diagnostic testing must be conducted. The examiner must opine: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset in, or is otherwise related to, active service, to include in-service noise exposure. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus had its onset in, or is otherwise related to, active service, to include in-service noise exposure. In providing this opinion, the examiner must address all of the evidence of record, to include the Veteran's lay contentions, Kaiser Permanente private treatment records regarding the onset of the Veteran's bilateral hearing loss and tinnitus, and the Institute of Medicine (IOM) 2006 study regarding permanent hearing loss as a result of noise exposure. The medical opinion must address the contradictory aspects of the IOM study as it relates to the Veteran's hearing issues. (Continued on the next page) If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.