Citation Nr: 22018971 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-09 877 DATE: March 31, 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 had active service in the United States Army from May 1971 to February 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2021. A copy of the transcript has been associated with the claims file. The Board notes that the Veteran's claims were the subject of a prior September 2016 denial by the Agency of Original Jurisdiction (AOJ). However, this decision did not become final, as new and material evidence was associated with the file within one year of this decision in the form of a medical opinion from the Veteran's private treating audiologist indicating a potential relationship between the Veteran's auditory pathology and his active service. See December 2016 Letter from J.C.D., M.D. See also 38 C.F.R. § 3.156 (b). Accordingly, new and material evidence is not required, and the Veteran's original May 2016 claim for service connection for bilateral hearing loss and tinnitus remains on appeal. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran asserts entitlement to service connection for bilateral hearing loss. Specifically, he asserts that his military duties as a field artillery officer resulted in noise exposure and, in turn, resulted in his currently diagnosed bilateral hearing loss and tinnitus. See, e.g., November 2021 Board Hearing Transcript. He further maintains that he was told by his private treating clinician that his in-service noise exposure likely contributed to his current auditory pathology. See id. The Veteran's DD-214 reflects that his Military Occupational Specialty (MOS) was as a field artillery unit commander. This tends to support his assertions concerning noise exposure during active duty. See 38 U.S.C. § 1154(a). Moreover, he is competent under the law to describe what occurred during and following his active service, including what he was told by his post-service treating clinician. See Washington v. Nicholson, 19 Vet. App. 363, 368 (2005) (finding that a Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (noting that a layperson is competent to report what he was told by a medical professional). The Veteran was afforded a VA examination in August 2016 to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. See August 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The examiner diagnosed bilateral hearing loss and tinnitus, acknowledged the Veteran's in-service noise exposure to artillery and weapons noise, noted that there was no evidence of post-service recreational or occupational noise exposure, but ultimately determined that the Veteran's bilateral hearing loss was less likely than not related to his in-service noise exposure based on the Veteran's in-service audiograms reflecting hearing "within normal limits," and because "[t]he only hearing loss noted was in 2016." Id. The Board finds this opinion to be inadequate for several reasons. First, the VA examiner based the negative etiological opinion primarily upon the lack of evidence of complaints of or treatment for auditory symptoms in the Veteran's 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 the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). In this regard, the absence of evidence of an auditory pathology in the service treatment records does not preclude service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Additionally, the August 2016 opinion appears to be underpinned by the determination that the Veteran's report of a delay in the onset of his auditory symptoms favors an intercurrent, post-service cause of the bilateral hearing loss and tinnitus. See August 2016 VA Hearing Loss and Tinnitus DBQ. In this regard, the Board observes that Court of Appeals for Veterans Claims (Court) has recently directed attention to an Institute of Medicine (IOM) report on delayed onset hearing loss. The Court found that while the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report's findings pertinent to the matter. The Court provided that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." (IOM report at 203-04). The Court has directed attention to the fact that the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Additionally, the August 2016 VA opinion relies upon the determination that the record is silent for complaints of hearing loss prior to 2016. See August 2016 VA Hearing Loss and Tinnitus DBQ (repeatedly emphasizing that "[t]he only hearing loss noted was in 2016"). However, the medical evidence of record reflects multiple notations of hearing loss complaints in the quarter century preceding his 2016 VA examination. See, e.g., May 1999 Treatment Note from J.R.G., M.D. (noting that the Veteran "feels he may have some hearing loss" but declined audiological testing); January 2009 Treatment Note from J.R.G., M.D. (assessing "hearing loss perhaps" based on the Veteran's complaints); September 2010 History and Physical from J.R.G., M.D. (reflecting the Veteran's report of experiencing hearing loss symptoms). Accordingly, because the record reflects that the Veteran's auditory pathology was noted by his medical treatment providers since at least 1999, the August 2016 VA opinion is based on an inaccurate factual premise and therefore cannot serve as the basis for a denial of entitlement to service connection. See Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that a physician's opinion based on an inaccurate factual premise has no probative value). Finally, the Board notes that the Veteran submitted an opinion from his private treating audiologist, which states that "[i]t is possible that his time in the Army with the artillery noise exposure has contributed to his hearing loss." See December 2016 Letter from J.C.D., M.D. While this is certainly an indication that the Veteran's hearing loss may be related to his active service, as he asserts, it is too speculative to support a decision on this claim. See, e.g., Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term "could," "may," or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Accordingly, the Board finds that reevaluation is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims of entitlement to service connection for bilateral hearing loss and tinnitus. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. After completion of the above development, schedule the Veteran for an examination by an appropriate clinician, other than the examiner who conducted the August 2016 VA examination, if possible, to determine the nature and etiology of any bilateral hearing loss and/or tinnitus disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. After reviewing the file, eliciting a full medical history from the Veteran, conducting an examination of the Veteran, and performing any clinically indicated diagnostic testing, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified hearing loss and/or tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, including specifically exposure to significant noise from artillery fire during his active service. For the purposes of this opinion, the examiner must consider and address the Veteran's reports regarding active-duty noise exposure, the onset, nature, and continuity of his hearing loss symptoms, and the absence of any significant post-service noise exposure, as reflected in his statements and testimony. In addition, the examiner should address the December 2016 Letter from J.C.D., M.D. indicating that the Veteran's in-service noise exposure potentially contributed to his current hearing pathology. The examiner must also address whether the Veteran had hearing loss or significant threshold shifts in service, to include discussion of the audiograms dated in April 1967, June 1968, July 1970, and December 1972. Additionally, the examiner should consider the IOM report concerning an individual's delayed awareness on the effects on hearing from noise. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology, and that his report must be considered in formulating the requested opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner is asked to provide a complete rationale for all opinions rendered, with medical explanation and citation to the record. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.