Citation Nr: 22014780 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-31 677 DATE: March 15, 2022 REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the VA Regional Office (RO) in No. Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in October 2021. A transcript of this proceeding has been associated with the claims file. 1. The claim of entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he experiences bilateral hearing loss which is due to his military service. Significantly, the Veteran's service personnel records show that his military occupational specialty was mortar man and also show that he is in receipt of the Combat Action Ribbon. Also, the Veteran's service treatment records show that he received significant injuries while stationed in Vietnam in January 1970 when he was involved in an explosion triggered by a booby trap. As such, in-service noise exposure has been conceded. The Veteran's available service treatment records include an April 1969 enlistment examination which shows normal hearing in the right ear but some hearing loss of the left ear (35 decibels) at 4000 Hz (see Hensley v. Brown, 5 Vet. App. 155, 157 (1993), holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Unfortunately, a separation examination is not of record. The Veteran submitted an initial claim for service connection for bilateral hearing loss in November 2017. In connection with this claim, he was afforded a VA audiological examination in March 2018. At that time, the examiner diagnosed bilateral hearing loss pursuant to 38 C.F.R. § 3.385 and opined that it was less likely than not that the Veteran's hearing loss is a result of military noise exposure. As rationale for this opinion, the examiner conceded that the Veteran was exposed to noise during his military service but that the onset of his hearing loss was in 1990, 20 years after his military service. The Veteran also reported working as an automobile mechanic after service, with moderate noise exposure. During the October 2021 virtual Board hearing, the Veteran testified that he served as a mortar man during his military service and that he was subjected to one or more attacks during his service which resulted in significant noise exposure. He also did not use any hearing protection. While the Veteran was also exposed to noise post-service as an automobile mechanic, also without the use of hearing protection, it was noted that combat noise is for more significant than automobile mechanic noise. The Board finds that an addendum medical opinion is necessary. First, the March 2018 medical opinion does not consider the Veteran's April 1969 enlistment examination showing some hearing loss of the left ear at 4000 Hz. Second, the March 2018 VA medical opinion appears to be based on a finding that while the Veteran had some noise exposure during service, he experienced more significant noise exposure following his military service. However, during the October 2021 Board hearing, the Veteran testified that he experienced significant noise exposure during service, including a highly documented incident while stationed in Vietnam in January 1970 when he was involved in an explosion triggered by a booby trap. It was also noted that, while he may have had some noise exposure after service, this was much less significant than the in-service noise exposure. As such, remand is warranted in this case to obtain a medical opinion which considers whether the Veteran's pre-existing left ear hearing loss was aggravated by the Veteran's military service and also considers the Veteran's testimony during the October 2021 Board hearing. 2. The claim of entitlement to service connection for tinnitus is remanded. The Veteran contends that he experiences tinnitus which is due to his military service. As above, the Veteran's service personnel records show that he is in receipt of the Combat Action Ribbon and the Veteran's service treatment records show that he received significant injuries while stationed in Vietnam in January 1970 when he was involved in an explosion triggered by a booby trap. As such, in-service noise exposure has been conceded. The Veteran submitted an initial claim for service connection for tinnitus in November 2017. In connection with this claim, he was afforded a VA audiological examination in March 2018. At that time, the examiner diagnosed tinnitus and opined that it was less likely than not that the Veteran's tinnitus is a result of military noise exposure. As rationale for this opinion, the examiner noted that the onset of the Veteran's tinnitus was well after his military service, approximately 20 years after military service. The Board finds that an addendum medical opinion is necessary. As above, the March 2018 VA medical opinion appears to be based on a finding that while the Veteran had some noise exposure during service, he experienced more significant noise exposure following his military service. However, the more significant noise exposure occurred during service, including a highly documented incident while stationed in Vietnam in January 1970 when he was involved in an explosion triggered by a booby trap. It was also noted that, while he may have had some noise exposure after service, this was much less significant than the in-service noise exposure. As such, remand is warranted in this case to obtain a medical opinion which considers the Veteran's testimony during the October 2021 Board hearing, to include an opinion regarding whether Veteran's tinnitus is secondary to a service-related bilateral hearing loss. Also, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his bilateral hearing loss and/or tinnitus since his discharge from military service. Furthermore, there are likely outstanding VA treatment records as the Veteran has consistently sought treatment at VA since April 1972, but the most recent VA medical records in the claims file are dated in December 2021. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his bilateral hearing loss and/or tinnitus since his discharge from military service. After obtaining any necessary authorization from the Veteran, obtain all identified records, to include updated VA treatment records dated from December 2021 to the present. 2. Obtain an addendum regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. No additional examination of the Veteran is necessary unless the examiner deems otherwise. Specifically, the examiner should provide opinions as to: a. whether there is clear and unmistakable evidence that the Veteran's left ear hearing loss existed prior to his service. b. If the examiner determines that left ear hearing loss did clearly and unmistakably exist prior to service, the examiner must address whether there is clear and unmistakable (undebatable, obvious, or manifest) evidence that the disability was not aggravated by such service. Note: Aggravation in this context (of a preexisting disability) means that the disability was permanently worsened beyond the natural progression of the disease; temporary or intermittent flare-ups of a preexisting injury during service are insufficient to constitute aggravation in service, unless the underlying condition itself, as contrasted with mere symptoms, has worsened. c. whether it is at least as likely not (50 percent probability or greater) that a hearing loss of either ear is caused by or is otherwise related to the Veteran's active duty service, to include the Veteran's significant combat related in-service noise exposure. d. whether it is at least as likely not (50 percent probability or greater) that the Veteran's tinnitus is caused by or is otherwise related to the Veteran's active duty service, to include the Veteran's significant combat related in-service noise exposure, and/or a service-connected disability. In answering this question, consider: (1) the April 1969 enlistment examination which shows normal hearing in the right ear but some hearing loss of the left ear at 4000 Hz; and (2) the testimony provided by the Veteran in the October 2021 Board hearing, specifically, that he served as a mortar man during his military service and that he was subjected to one or more attacks during his service which resulted in significant noise exposure, without the use of any hearing protection and that, while the Veteran was also exposed to noise post-service as an automobile mechanic, also without the use of hearing protection, combat noise is for more significant than automobile mechanic noise. If unable to provide a medical opinion, please provide a statement as to whether there is any 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. The examiner is asked to provide the underlying reasons for all opinions expressed, and 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. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.