Citation Nr: 22017404 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-54 597 DATE: March 25, 2022 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 United States Army from February 1969 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was most recently before the Board in May 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Service Connection Bilateral Hearing Loss and Tinnitus As noted above, the Board previously remanded the Veteran's claims of service connection for hearing loss and tinnitus for additional VA examinations. Specifically, the May 2019 Board sought a VA medical opinion as to the Veteran's bilateral hearing loss which did not rely entirely on the lack of diagnosed hearing loss in the service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide a negative opinion). In a November 2019 VA examination report, the examiner again noted that there was no significant threshold shift while in service. Furthermore, although indicating that noise exposure was conceded, the examiner found that there was no evidence on the record that the Veteran sustained noise injuries based on audiograms. The examiner mistakenly indicated that conceded exposure to acoustic trauma is neither an injury nor a disease and is not sufficient to establish line of duty injury or disease and that a line of duty injury or disease is needed. Again, as indicated in the May 2019 Board remand, evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the opinion is inadequate, and an additional VA opinion is necessary. Additionally, in the November 2019 VA examination report, the examiner also noted that the Veteran had normal hearing bilaterally at separation from military service, thus there are no objective factors for which the etiology of tinnitus could be attributed. Again, the examiner relied on the lack of diagnosed hearing loss in the service treatment records. As such, the opinion is inadequate, and an additional VA opinion is necessary. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to obtain additional VA addendum opinions that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). 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 claim 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 his 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. Obtain addendum opinions by an audiologist to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during any period of service, or is otherwise related to such period of service? (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its onset during any period of service, or is otherwise related to such period of service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The 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; medical opinions 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 resorting 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. Mariah N. Sim Acting 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.