Citation Nr: 23018564 Decision Date: 03/24/23 Archive Date: 03/24/23 DOCKET NO. 19-11 375 DATE: March 24, 2023 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disorder to include unspecified anxiety disorder and unspecified depressive disorder, as secondary to service-connected degenerative arthritis of lumbar spine (claimed as lower back injury), is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The most probative and persuasive evidence shows that the Veteran's tinnitus is related to hazardous noise exposure during active service. 2. The most probative and persuasive evidence shows that the Veteran's acquired psychiatric disorder to include unspecified anxiety disorder and unspecified depressive disorder, was proximately caused or aggravated by service-connected degenerative arthritis of lumbar spine (claimed as lower back injury). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder to include unspecified anxiety disorder and unspecified depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). Service Connection 1. Entitlement to service connection for tinnitus Establishing entitlement to service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. §3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309 (a). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is available for sensorineural hearing loss and tinnitus as organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran has asserted that his tinnitus is related to noise exposure during active service. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) A layperson is considered competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran has a diagnosis of recurrent tinnitus by VA examination, establishing the first element required for service connection. The Veteran's MOS during service is noted at different periods of time in his personnel records as armor unit supply specialist; general vehicle repairman; and heavy truck driver. He was trained to operate and operated 14 ton 34 ton, 1 14 ton 2 12 ton, and 5 ton vehicles. There are notations in his personnel file that he was a "good driver." The Board finds that the Veteran's MOS of heavy truck driver with service in an armor unit has a high probability of hazardous noise exposure, thereby meeting the second element required to establish service connection. As to the final element required to establish service connection, the Board will review the evidence relating to a nexus between tinnitus and an event, injury or illness during service. The Veteran submitted a statement in August 2015 that he has had hearing loss and ringing in his ears since working in the transportation department and motor pool in the army. He stated that "Every time we went to the field, the artillery went with us and I was also exposed to the noise trauma of Howitzers constantly." The Veteran stated that he was given a new MOS following an in-service back injury. The Board notes that the Veteran was afforded a VA examination in March 2016. The Veteran reported constant tinnitus, bilaterally, with onset in 1968 or 1969 during active service. The examiner opined that it was less likely than not (less than 50 percent probability) that tinnitus was caused by or a result of military noise exposure. The rationale was that there was normal hearing sensitivity evidenced bilaterally with evaluation at entrance and separation with no significant change in thresholds. No complaint of tinnitus was documented in service medical records. The examiner stated that if there is no hearing loss or changes, the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence. The examiner stated the Veteran's MOS in the service was reported to have a low probability of significant noise exposure. The examiner stated that after service, the Veteran had an office job and later worked as a courier/supervisor for before retiring secondary to age/eligibility. In a May 2016 statement, the Veteran stated that when he was discharged from service, he did not get a separation audiology examination, nor was he seen by a doctor; he walked through a line with his separation papers and it was checked off. He noted that he served in an armor company with tanks/Howitzers, cannons; and track personnel carriers and was exposed to extremely loud noise. The Board finds that the March 2016 VA examiner's opinion is entitled to low probative weight as it is supported by an inadequate rationale. Nieves Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner relied on the lack of evidence of hearing loss from entrance to separation, however the Board notes that service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, the examiner found that the Veteran's MOS of armor unit supply specialist had a low probability of noise exposure but did not address evidence of an additional duty MOS of heavy truck driver which has a high probability of hazardous noise exposure. The VA examiner's reliance on an inaccurate factual premise renders the opinion inadequate. VA medical opinions must be based on accurate factual premises. Reonal v. Brown, 5 Vet. App. 458 (1993). The correct MOS constitutes material evidence favorable to the Veteran's claim that was not considered. Thompson v. Gober, 14 Vet. App. 187, 188 (2000). The examiner's rationale that in the absence of hearing loss, the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence is not sufficient. The contemporaneous hearing loss examination results were not reliable to evaluate whether or not the Veteran has a diagnosed hearing loss that could be related to tinnitus. Finally, the examiner's notation of the Veteran's after service occupations as an office worker and courier shows no post-service occupational noise exposure and does not support the rationale. The Board finds the Veteran is competent to report symptoms of tinnitus and the hazardous noise exposure which precipitated the development of his tinnitus, which continues to the present day. Jandreau v. Nicholson, 492 F.3d 1372 (2007); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the evidence, including the circumstances of the Veteran's service, his MOS during certain periods of service with a high probability of hazardous noise exposure, and the Veteran's credible statements, constitutes highly probative evidence of a nexus between excessive noise exposure during service and tinnitus. Noting the relaxed standard for tinnitus where acoustic trauma is found, the Board finds that the Veteran's competent and credible statements are entitled to higher probative value than the VA examiner's opinion and provide the requisite nexus based on continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the evidence is at least in approximate balance as to whether the Veteran incurred his current tinnitus as a result of hazardous noise exposure during active duty. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The evidence does not persuasively weigh against such finding. Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is therefore warranted. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for an acquired psychiatric disorder to include an unspecified anxiety disorder and unspecified depressive disorder, including as secondary to service-connected degenerative arthritis of lumbar spine (claimed as lower back injury) In addition to the elements of direct service connection outlined above, service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). The Veteran has asserted that his anxiety disorder and depressive disorder were caused by or aggravated by his service-connected arthritis of the lumbar spine (claimed as lower back injury) and resulting pain and functional impairment. Prior to active service, a February 1968 medical record notes that the Veteran complained of rapid heartbeat and was admitted to the hospital for evaluation. Cardiac evaluation was normal. The physician stated that, "It is my feeling that this boy's trouble was from tension, and he has been reassured that his heart is in good condition and has been placed on Mellaril 50 mg. tablets to use four times a day for a short time to help get him over the hump so to speak." As a result of an in-service back injury, the Veteran was hospitalized during active service from February 3, 1969, to March 7, 1969. Significant uncompensated scoliosis was noted. The Veteran was put on a profile for two months due to diagnoses of scoliosis of spine and herniation, nucleus pulposus, probable. VA mental health progress notes beginning in March 2014 note that the Veteran was seen with "refractory depression" and has been on Lexapro. He wanted medication to treat depression and during clinic visits, the Veteran reported having anxiety to the point of panic attacks. Symptoms noted included pervasive sadness; decreased energy; and anhedonia. He reported a persistent fear that someone is trying to kill him, ongoing nightmares, and depressed mood. The Veteran reported that he started having problems with "nerves" and memory about three years earlier and that at times he feels like his "insides are jumping." After his brother died, his nervousness worsened. He reported frequent crying spells. The Veteran submitted a statement in August 2015 that he became depressed and anxious after he injured his back during service in Germany. He injured his back during service when manually loading rounds onto a 155 Howitzer. The rounds all fell on him. He was "unable to get up and was carried to the hospital." He was in the hospital for weeks. He began walking with his neck and head projected forward. He stated that to this day, he sometimes he falls while walking. He was given a new MOS and worked in supply. After service he tried chiropractors, but it didn't help. He stated he has had pain since the injury occurred which he described as sharp, shooting, stabbing, and dull, aching pain. He stated he was on limited income so he had to learn to just deal with the pain and falling down. He has problems sleeping and sometimes stays up for two days at a time. He stated that he gets anxiety around people and "cries at the drop of a hat." The Veteran's ex-wife submitted a statement in August 2015. She stated that she was married to the Veteran when he served in the army. He was stationed in Germany where they lived from 1968 to 1970. She stated that the Veteran was hospitalized at the army hospital after injuring his neck and back. She stated that these problems, for one thing, caused him to walk with his head held down. The Veteran was afforded a VA examination for back (thoracolumbar spine) conditions in March 2016. The examiner noted that prior to military service, the Veteran had low back strain and spina bifida occulta. The examiner stated that the Veteran's examination was not remarkable and he was able to do all work required in the military with occasional low back pain. The examiner stated that in February 1969, the Veteran had an acute low back injury after a heavy object was thrust upon him, with immediate onset of severe low back pain, and hospitalization as suspected of being due to an acutely herniated disc. He had profiles to limit his activity and left the military shortly thereafter, with chronic low back pain which continues. After that time, he had low back pain severe enough that he had to do relatively sedentary work. After the military, he worked at TVA, and in other sedentary positions. He continues to have chronic low back pain. The Veteran was afforded a VA examination for mental disorders in October 2018. The Veteran was diagnosed with unspecified anxiety disorder and unspecified depressive disorder and stated that it was impossible to separate the impairment in functioning related solely to either anxiety disorder or depressive disorder without resorting to mere speculation. The Veteran reported that he married prior to service and was then divorced while still in service. He stated that his wife wanted to return to the United States from Germany, and that she became even more isolated after he was injured and hospitalized in 1969. The examiner stated that there is no evidence that the Veteran was diagnosed with a psychiatric condition during service. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, and disturbances of motivation and mood. The examiner noted signs of mild paranoia. The examiner stated that the Veteran's first VA appointment in February 2014 noted that he had "refractory depression" and had previously been prescribed Lexapro. The examiner noted that during a March 2014 appointment, the Veteran reported that he had been having worsening anxiety in the past year and was started on sertraline. During clinic visits, he reported having anxiety to the point of panic attacks especially if he is under any pressure/stress/ in a crowd. He also reported having a persistent fear that someone is trying to kill him, ongoing nightmares, and depressed mood, and lingering frustration related to his VA care. The stressors reported by the Veteran included that he often did guard duty while in the military. He stated that once upon returning to base, he found out that a fellow serviceman had been attacked and beaten. The Veteran added that he has had a hard time letting go of his military training since being discharged. The Veteran expressed frustration over VA-related medical bills that were never paid which put him "under" (made him very stressed and depressed). The examiner opined that the Veteran's acquired psychological disorder to include anxiety disorder and depressive disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected back disability. The rationale was that although the Veteran's back issues date back to his time in the military, there are no indications from service treatment records that these issues resulted in clinically significant anxiety/depression. While the Veteran was prescribed mellaril for presumed "tension" in February 1968, the examiner noted that he was treated by a non-mental health provider who did not render a formal psychiatric diagnosis ("Tension" is a symptom, not a disorder.). Further, there are no signs of symptom persistence. The provider who saw the Veteran expressed the belief that his symptoms were related to unspecified situational stress (and gave him medication to get him "over the hump"). The examiner further stated that there is no further evidence in service treatment records of anxiety/mood-based complaints. The examiner continued his rationale, stating that according to April 2016 medical examination, the Veteran did not suffer an acute back injury that limited his activity until February 1969, 1 year after the February 1968 medical note that documented "tension." The examiner stated that the Veteran's mental health records from February 2014 - present and his self-report during this exam do not establish a clear nexus between his service-connected back issues and his depressive/anxious symptoms. The examiner stated that the Veteran did not discuss his anxious/depressive symptoms in the context of back pain/functional loss. Rather, his depressive/anxious symptoms have been related to more broad situational stress, such as dissatisfaction with the VA claim process/results and financial strain stemming from nonpayment of medical bills. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that the October 2018 mental disorders examiner acknowledged the March 2016 VA back examiner's finding that the Veteran suffered an acute back injury that limited his activity in February 1969. However, the October 2018 examiner did not further address the impact of the back injury which formed the basis of service connection for degenerative arthritis of lumbar spine (claimed as lower back injury), including the continuing chronic pain and functional impairment, which is evidence that is relevant to the Veteran's claim for secondary service connection. Moreover, the October 2018 VA examiner found that the Veteran did not discuss his anxious/depressive symptoms in the context of pain or functional loss during the examination, however, he did not address lay statements made by the Veteran at other times. For example, the Veteran submitted a statement in August 2015 that he became depressed and anxious after he injured his back during service in Germany. He described a weeks-long hospital stay and that he thereafter began walking with his neck and head projected forward, and to this day, he sometimes falls while walking. After service he tried chiropractors, but it didn't help. He stated he was on limited income, so he had to learn to just deal with the pain and falling down. He stated that he has problems sleeping and sometimes stays awake for two days at a time. He stated that he gets anxiety around people and "cries at the drop of a hat." The Board finds that the Veteran's competent lay statements are credible. A medical opinion that does not take the Veteran's lay statements into account is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Further, while the Board acknowledges the VA examiner's finding that more recent events may impact the Veteran's psychiatric disorder, such finding does not in and of itself preclude a finding that the Veteran's service-connected back disability, and resulting pain and functional impairment, aggravated his psychiatric disorder. Further, the Board observes that March 2014 VA mental health records note that the Veteran was seen for "refractory depression" and had previously been prescribed Lexapro. The Board notes that refractory depression is recurrent and that prior medication was prescribed shows that this was not the first time the Veteran was treated for depression. In the May 2016 rating decision granting service connection for degenerative arthritis of the lumbar spine (claimed as lower back injury), the RO granted service connection because this condition, which existed prior to military service, permanently worsened as a result of service. The RO noted that since the pre-service percentage was zero, no deduction was necessary before assigning a service-connected evaluation. It follows that any pain or functional impairment was the result of the worsening of the Veteran's pre-existing back disorder by his in-service injury, for which the Veteran has been service-connected. In turn, secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). The Board further notes that while the October 2018 examiner opined that it was less likely than not that the Veteran's back disorder was related to his current psychiatric disability, at another point in his report he indicated that there was not a "clear nexus," while simultaneously acknowledging that the Veteran had been suffering with back problems since service. Thus, it appears that the examiner was applying a far more stringent standard than the law provides and that had he known that the standard is simply approximately more likely than not, he would have recognized at least some relationship between the Veteran's low back disorder and his psychiatric disorder. The Board therefore finds that the evidence, including the medical evidence, the VA examiners' findings, and the Veteran's lay statements is at least in approximate equipoise that the Veteran's service-connected degenerative arthritis of lumbar spine (claimed as lower back injury), and continuing chronic pain and functional impact proximately caused or aggravated the Veteran's anxiety disorder and depressive disorder. The evidence shows that it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected arthritis of the lumbar spine (claimed as lower back injury) and continuing chronic pain thereafter, which impacted his well-being and resulted in permanent functional impairment, proximately aggravated his anxiety disorder and depressive disorder. The Board therefore applies the benefit of the doubt to find that service is warranted for the Veteran's psychiatric disorder as secondary to service-connected degenerative arthritis of lumbar spine (claimed as lower back injury). 38 U.S.C. § 5107A; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran has asserted that his hearing loss is related to noise exposure during active service. For the purposes of applying the laws administered by VA, a disability due to impaired hearing may be considered if the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records do not contain audiometric findings that meet the criteria for hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran's bilateral hearing was recorded as normal on entry to service and on discharge from service. The Veteran submitted a statement in August 2015 that he has had hearing loss and ringing in his ears since working in the transportation department and motor pool in the army. "Every time we went to the field, the artillery went with us and I was also exposed to the noise trauma of Howitzers constantly." The Veteran was afforded a VA examination in March 2016. Audiological testing results were reported as not reliable by the examiner. The examiner found that the puretone test results are not valid for rating purposes (not indicative of organic hearing loss). The degree and configuration of hearing sensitivity could not be determined since results were unreliable. Pure tone results varied and were significantly greater than expected based on SRT findings. SRT responses were obtained at lower levels with part word responses. Word recognition ability could not be reliably assessed. Responses were inconsistent and not suitable for adjudication purposes. The examiner found that the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate. The examiner opined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) caused by or a result of an event in military service. The rationale provided was that normal hearing sensitivity evidenced with evaluation at entrance and separation with no significant change in thresholds. The examiner stated that no complaint of impaired hearing was documented in service medical records. In addition, the examiner stated that the Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely." The examiner also stated that although degree and configuration of hearing sensitivity could not be determined with today's testing, it is not relevant since if hearing loss does currently exist, it is not related to service since normal hearing sensitivity evidenced at time of separation from the service with no significant change in thresholds. The examiner noted that the Veteran reported noise exposure in the Army from 1968 through 1969 from artillery, gunfire, tanks, and diesel motors with use of ear protection some of the time. His reported occupation prior to service was at a service station. His reported occupation after service was intermittently driving a route for 10 years, and working in supply with Tennessee Valley Authority for 10 years where he reported he was not required to wear ear protection. He denied recreational noise exposure. The threshold question is whether the Veteran has the disability for which service connection is sought, that is bilateral hearing loss. In the absence of a present hearing loss disability pursuant to 38 C.F.R. § 3.385, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The examination provided did not establish nor rule out a diagnosis of hearing loss as audiometric testing was not valid. In addition, the Board finds the examination was inadequate. It largely relied on a finding of no significant change in thresholds during service. Entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The examiner also stated that whether the Veteran has a hearing loss, such is "not relevant" since if hearing loss does currently exist, it is not related to service since normal hearing sensitivity evidenced at time of separation from the service with no significant change in thresholds. As noted, entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Board also notes that the examiner cited a 17-year-old IOM finding that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Regarding the IOM report, the United States Court of Appeals for Veterans Claims has held that the Board must address a medical text that serves as the basis for a medical opinion which contains apparent qualifiers or contradictions to explain whether those aspects of the medical text diminish the probative value of the medical opinion. McCray v. Wilkie, 31 Vet. App. 243 (2019). To that point, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." The Board finds that the opinion is speculative and conclusory, and the examiner failed to provide adequate reasons and bases to support it. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that a remand is necessary to provide the Veteran with a new VA examination to determine if he has a hearing loss diagnosis for VA purposes and if so, for a medical opinion addressing whether such hearing loss is related to active service. However, the Veteran is cautioned that he has a duty to cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If a diagnosis of hearing loss cannot be confirmed, service connection may be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The matters are REMANDED for the following action: The AOJ should schedule an examination with an appropriate examiner other than the prior examiner who conducted the examination in March 2016. The examiner should conduct appropriate audiological testing to determine if the Veteran has a hearing loss disability. If a diagnosis of hearing loss is confirmed, the examiner should provide the following opinion: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hearing loss was caused by or aggravated by an event, injury, or illness during active service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, Associate 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.