Citation Nr: A25035889 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 241017-483551 DATE: April 18, 2025 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to left ear hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1994 to October 1999 and from November 2001 to November 2002. In July 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2023 decision. In November 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2023 decision. In October 2024, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). REMAND The Veteran seeks service connection for hearing loss and tinnitus that she contends is a result of noise exposure while stationed on ships during active duty. She explained that the ventilation was loud requiring her to remove ear plugs to communicate with her coworkers and stated that her tinnitus began during active duty. See November 2023 HLR-Informal Conference. For the following reasons, the Board remands?the Veteran's claim to correct pre-decisional duty to assist errors under the provisions of?38?C.F.R. §?20.802.?? The Veteran was afforded a Hearing Loss and Tinnitus VA Examination in connection with her service connection claim. The examiner determined that the Veteran had left ear hearing loss and tinnitus diagnoses. The examiner opined that the Veteran's left ear hearing loss and tinnitus were not at least as likely as not caused by or a result of an event in military service. As a rationale, the examiner acknowledged the Veteran's report of working as a mess hall specialist, working on a ship, working in the kitchen, and being exposed to noise via machinery noise. The examiner explained that the Veteran's separation exam showed no evidence of acoustic trauma, that hearing was normal, that no shifts were recorded in thresholds, and that no post service exams showed hearing loss or tinnitus. The examiner stated that configuration of hearing loss does not indicate acoustic trauma and that tinnitus is often one of the symptoms of excessive noise exposure and cochlear damage, therefore, the Veteran's left ear hearing loss and tinnitus were less likely than not caused by military noise exposure. In conclusion, the examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss. See May 2023 Hearing Loss and Tinnitus VA Exam. After finding that the Veteran participated in a toxic exposure risk activity (TERA) during service, the AOJ obtained additional medical opinions. Based on a review of the records, the examiner opined that the Veteran's left ear hearing loss and tinnitus were less likely than not caused by the indicated toxic exposure risk activity, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. As a rationale, the examiner explained that hearing loss and tinnitus are not presumed by regulation to result from burn pit or dust exposure. Then, the examiner cited to medical treatise material and determined that there is no competent medical evidence relating either hearing loss or tinnitus to burn pit or dust exposure. See June 2023 Medical Opinion. Another examiner reviewed the Veteran's records and opined that the Veteran's left ear hearing loss and tinnitus were less likely than not caused by the indicated toxic exposure risk activity, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. As a rationale, the examiner stated that there is no cause-and-effect relationship between chemical exposure and development of tinnitus and hearing loss. See July 2023 Medical Opinion. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate.? See Barr v. Nicholson, 21?Vet. App.?303, 312 (2007). After careful review and consideration, the Board finds the medical opinions are inadequate. Specifically, the May 2023 examiner relied on the Veteran's normal hearing test results at separation and post service but failed to explain how that bears on the issues before the Board, to include a delayed onset theory of entitlement. The June and July 2023 examiners failed to support their opinions with complete and thorough rationales based on consideration of all pertinent lay and medical evidence, regardless of VA's presumptive regulation. Overall, the medical opinions of record do not contain clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 301 (2008). The AOJ's reliance on the inadequate opinions constitutes a pre-decisional duty to assist error. Based on the foregoing, prior to denying the Veteran's claims, the AOJ should have obtained adequate medical opinions.? On remand, adequate medical opinions should be obtained to correct the AOJ's pre-decisional duty to assist error.?? The matters are REMANDED for the following action: Obtain medical opinions from an appropriate examiner addressing the etiology of the Veteran's left ear hearing loss and tinnitus. The entire claims file should be made available to and reviewed by the opinion provider. Following review of the entire record, the opinion provider should respond to the following: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left ear hearing loss had onset in, or is otherwise related to military service, to include in-service noise exposure on ships and the conceded participation in a TERA. b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's tinnitus had onset in, or is otherwise related to military service, to include in-service noise exposure on ships and the conceded participation in a TERA. c) Notwithstanding the above, is it least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's tinnitus was caused or aggravated by her left ear hearing loss disability. In providing a response, the examiner must consider and discuss whether the Veteran's tinnitus would have been less severe "but-for" her left ear hearing loss disability, either because there is an etiological link, to include worsening of functionality, or because the left ear hearing loss disability resulted in the inability to treat the tinnitus. The examiner should explain the significance, if any, of normal hearing test results post service and how such results bear on the issues of entitlement to service connection for left ear hearing loss and tinnitus, to include on a delayed onset theory of entitlement. If the examiner bases any portion of the opinion on a gap in documented medical treatment (i.e., the time between the in-service injury and the first medical report of treatment sought) the examiner should explain why or how, from a medical perspective, that gap in documented medical treatment informs the medical opinion. (Continued on the next page) ? All opinions should be supported with a complete and thorough explanation or rationale and should be based on consideration of all pertinent lay and medical evidence. If, in the opinion of the examiner, responses to the questions above cannot be provided without an in-person or virtual exam or interview, such should be scheduled. The examiner should provide an explanation as to why an examination is necessary. All efforts to schedule an examination should be documented in the claims file. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ti'a L. Smith, 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.