Citation Nr: 21032526 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-08 122 DATE: May 27, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to service connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 2005 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2015 and a March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Board issued a decision in August 2019 denying service connection for bilateral hearing loss and remanding service connection for tinnitus, obstructive sleep apnea, insomnia, and entitlement to a TDIU. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order granting a Joint Motion for Partial Remand (JMR), the Court vacated the Board's August 2019 decision pertaining to the denial of service connection for left ear hearing loss, as the Veteran did not contest the Board's decision denying service connection for right ear hearing loss. The Court then remanded the claim for left ear hearing loss to the Board for additional development and readjudication. In February 2021, the Board remanded the claims for service connection for left ear hearing loss, tinnitus and obstructive sleep apnea as well as a claim for a TDIU for additional development. A March 2021 rating decision granted the Veteran's claim for service connection for obstructive sleep apnea and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Entitlement to service connection for left ear hearing loss is remanded. As noted above, the Board remanded the claim of service connection for left ear hearing loss in February 2021 for additional development to include a VA examination. The March 2021 VA examiner noted that hearing examinations during active duty show normal and stable hearing 2005 to 2007 and no hearing loss was reported until 2015. The examiner opined that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. A VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). However, a VA examination is considered inadequate where the examiner fails to articulate "a reasoned explanation" of his or her conclusion that no opinion is possible without resort to mere speculation. The Board finds that the March 2021 opinion is inadequate because it did not provide a reasoned explanation as to why resorting to speculation is indicated. On remand, an adequate etiology opinion should be obtained. 2. Entitlement to service connection for tinnitus is remanded. The March 2021 examiner indicated that hearing loss did not exist prior to service. However, the examiner also found that tinnitus was not at least as likely as not caused by or a result of military noise exposure as he had a pre-existing hearing loss at the time of enlistment and tinnitus was denied on medical record dated in 2009. In addition, no opinion as to secondary service connection was provided. The Board finds the statements as to whether the Veteran had a pre-existing hearing loss contradictory and finds an addendum opinion as to the etiology of tinnitus is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). For clarification purposes, the Board notes that the Veteran did not have hearing loss for VA compensation purposes at the time of enlistment in October 2005. 3. Entitlement to a TDIU is remanded. Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claims of entitlement to service connection for hearing loss and tinnitus. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an addendum opinion regarding the etiology of the Veteran's left ear hearing loss and tinnitus. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination is left to the discretion of the examiner. The examiner is asked to provide responses to the following: (A) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's left ear hearing loss was incurred in, or is otherwise related to, his active service? The examiner must consider the Veteran's statements concerning noise exposure during service, to include due to improvised explosive devices (IEDs). (B) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's tinnitus was incurred in, or is otherwise related to, his active service? The examiner must consider the Veteran's statements concerning noise exposure during service, to include due to IEDs. (C) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's tinnitus was caused or aggravated by his service connected PTSD or any medications he has been prescribed for his service connected disabilities? Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page) The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.