Citation Nr: 21031322 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 12-27 595A DATE: May 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Army from November 1961 to November 1963, with subsequent service in the Reserve and Illinois National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 Department of Veterans Affairs (VA) rating decision. An April 2015 videoconference hearing was held before a Veterans Law Judge who is no longer employed at the Board. Upon notice in June 2017 of his right to a new hearing, the Veteran declined a new hearing. The case was remanded to the Regional Office (RO) in August 2015 and August 2017. A June 2018 Board decision denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Memorandum Decision, the Court found that the Board failed to discuss compliance with its prior remand order and the duty to assist regarding VA's efforts to obtain his service records, particularly those from the Illinois National Guard. Consequently, the Court set aside the Board decision and remanded the case to the Board for any necessary development and readjudication consistent with the Court's decision. The Court also found the September 2017 examiner's opinion was based on an inaccurate medical history by stating the May 1996 and January 2002 private audiograms revealed normal despite evidence of some degree of right ear hearing loss, thus diminishing its probative value. In August 2020, the Board directed the RO to again attempt to obtain all available treatment records of the Veteran for the period of November 1963 to January 1968. The Board finds that the development undertaken by the RO failed to adhere to directives set forth in the August 2020 Remand. Under Stegall, a remand by the Board confers on the veteran the right to compliance with its remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The remand directives instructed the RO to obtain the Veteran's treatment records from the Army Reserve from November 1963 through January 1964 and the Illinois Army National Guard from January 1964 to January 1968, and stated the RO should request the Veteran complete Standard Form 180 if the Veteran's authorization is required for the release of the National Guard records from the State of Illinois. The RO instead requested both sets of the records from Federal depositories and there is no evidence of contact with the Illinois Army National Guard. Therefore, the Board must remand the claim to allow for the RO to request the treatment records from the Illinois Army National Guard. Moreover, the December 2020 VA medical opinion and subsequent January and February 2021 addendums are inadequate for several reasons. First, in the August 2020 remand directives the Board conceded exposure to increased noise levels in service, but the examiner stated noise exposure was not found in service. Moreover, the examiner noted that the Veteran's MOS had a low probability of noise exposure but did not address his lay statements regarding exposure to generators and gunfire while on the firing range in the Army and annually for training with the National Guard or the Veteran's statement that his tinnitus began in the last year of his service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the examiner found that hearing loss was not present in the May 1996 and January 2002 private audiology reports yet stated the Veteran had a right ear speech discrimination score of 92 percent in the January 2002 audiogram; a figure which in fact meets the VA definition of hearing loss. 38 C.F.R. § 3.385. As such, the examiner relied, in part, on an incorrect factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Therefore, the claim must be remanded for adequate opinions. The matters are REMANDED for the following action: 1. Obtain from the appropriate records custodian the Veteran's treatment records from his military service period in the Illinois Army National Guard (from January 15, 1964 to January 14, 1968). If the Veteran's authorization is required for the release of the National Guard records from the State of Illinois [as was previously requested in January 2017, when the VA asked him to complete Standard Form 180], he must cooperate in the securing of such records (as under the law of this case they are considered essential evidence). If the records cannot be obtained, provide the Veteran with specific notice of the unavailability of the records pursuant to 38 C.F.R. § 3.159(e)(1). 2. Thereafter, forward the Veteran's claim file to a qualified clinician, other than the December 2020 audiologist if possible, for the purpose of obtaining a medical opinion as to the nature and etiology of the Veteran's current bilateral hearing loss disability and tinnitus. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss disability is a result of the Veteran's CONCEDED military noise exposure, including noise from generators and while on the firing range with the Army and annually at National Guard Training. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that his tinnitus is a result of the Veteran's CONCEDED military noise exposure, including noise from generators and while on the firing range with the Army and annually at National Guard Training. In doing so, specifically consider: (i) the May 1996 and January 2002 private audiograms which demonstrate, to some degree, right ear hearing loss; (ii) express agreement or disagreement with the November 2008 private otolaryngologist's opinion attributing the Veteran's longstanding sensorineural hearing loss to a combination of aging and exposure to noise in service; and, (iii) the Veteran's lay statement regarding the onset and continuity of symptomatology (he testified that he initially received a diagnosis of hearing loss in 1966 and that his tinnitus began in 1964 and stated in his December 2020 VA examination the onset of his tinnitus was in his final year of service). A complete rationale for all proffered opinions must be provided. If an opinion sought cannot be provided without resort to speculation, the examiner should state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record (additional facts are required), and if so, what facts are needed. 2. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.