Citation Nr: 21040053 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-62 331 DATE: July 2, 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 from December 1970 to September 1973. This appeal arises from a November 2016 rating decision by a VA Regional Office (RO). At a February 2021 Board of Veterans' Appeals (Board) hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. In an August 2016 statement, the Veteran contends that he has hearing loss and tinnitus "caused by [his] exposure to heavy mortars and arms fire in the military." He stated that he was never issued any hearing protection and remembers having ringing in his ears after firing mortars. Furthermore, at the February 2021 Board hearing, the Veteran asserted that he has had continuous hearing loss and tinnitus since his in-service exposure to loud noises. The Board notes that the Veteran's service treatment records (STRs) show his military occupational specialty (MOS) was indirect fire crewman. The STRs also include audiometric examination results showing no hearing loss or tinnitus at the time of entrance or separation in October 1970 and August 1973, respectively. VA afforded the Veteran an audiological examination in November 2016. The examination report shows that the Veteran has bilateral hearing loss and tinnitus. However, the examiner provided negative nexus opinions and based such opinions, at least in part, on a 2006 Institute of Medicine (IOM) study that concluded that a prolonged delay in onset of noise-induced hearing loss is unlikely. At the Board hearing, the Veteran's representative questioned the quality of information included in that particular study. The Board notes that the Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), determined that the Board has an obligation to address contradictory or qualifying aspects of the 2006 IOM report referenced by a VA audiologist when the issue is expressly raised by the veteran or reasonably raised from a review of the record. Furthermore, the Veteran's representative argued at the hearing that the audiometric exams included in the Veteran's STRs show "a little bit of shifting." Additionally, the Veteran testified at the Board hearing that he has experienced hearing loss and tinnitus since service; this contention was not addressed by the November 2016 VA examiner. As such, the November 2016 examination is not adequate to adjudicate the hearing loss and tinnitus issues at this time. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address a veteran's lay evidence, and the Board does not find the veteran not credible or not competent to offer that lay evidence, a new exam is needed). Furthermore, at the Board hearing, the Veteran asserted that he consulted a VA hearing aid doctor on October 26, 2020, and that doctor linked the Veteran's hearing loss to his service. However, VA treatment records of that consultation are not currently associated with the claims file, and thus, reasonable efforts should be made to obtain such records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Then, the Veteran should be afforded a new VA opinion, and examination if deemed necessary, that adequately considers the Veteran's contentions. See Miller v. Wilkie, 32 Vet. App. 249 (2020); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from July 2017 to the present and records of the hearing aid consultation on October 26, 2020. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner (for hearing loss and tinnitus) to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether the Veteran's current hearing loss and tinnitus at least as likely as not: (a) had an onset in service or (b) are otherwise related to service. The examiner should consider all medical and lay evidence of record, specifically addressing the Veteran's lay statements regarding experiencing continuous hearing loss and tinnitus since his in-service exposure to loud noises and addressing any shifting in audiometric results included in the Veteran's STRs. (Continued on the next page) The examiner should also comment on the validity and relevance of the 2006 IOM study as it pertains to the Veteran's case. 3. After the above development and any other development deemed necessary is completed, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.