Citation Nr: 18149053 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-12 688 DATE: November 8, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an increased rating for lumbar stenosis, lumbar intervertebral disc syndrome, and lumbar arthritis (low back disability), rated as 20 percent disabling from February 5, 2013 to September 5, 2017, and 40 percent disabling thereafter, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise that the Veteran’s currently diagnosed tinnitus originated in service or is otherwise attributable to his active duty service. 2. For the period from February 5, 2013 to September 5, 2017, even considering factors such as weakness, fatigue, decreased motion, and pain on movement, the forward flexion of the thoracolumbar spine was not shown to be functionally limited to 30 degrees or less. 3. The evidence of record does not show that the Veteran has ever had ankylosis in his lower back. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a rating in excess of 20 percent from February 5, 2013 to September 5, 2017, and a rating in excess of 40 percent thereafter, for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from August 1976 to August 1980. A Board hearing was scheduled for October 2018. The Veteran failed to report for his scheduled hearing, and has not provided good cause for his absence. The Veteran’s hearing request is therefore considered to have been withdrawn. See 38 C.F.R. § 20.704 (d). Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”--the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for chronic disabilities, such as tinnitus, as an organic disease of the nervous system, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court of Appeals for Veterans Claims has held that tinnitus is to be considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for tinnitus The Veteran seeks service connection for tinnitus, which he contends is the result of noise exposure during service. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. Turning to the evidence of record, service treatment records are silent for any complaints, diagnosis, or treatment of tinnitus. The Veteran received a VA examination in July 2013 and was diagnosed with tinnitus. However, the examiner opined that tinnitus was less likely than not caused by the Veteran’s history of military noise exposure because the onset was 5 to 6 years prior to the examination and the Veteran had normal hearing loss at entrance and separation, with no significant threshold shifts. The examiner opined that the Veteran’s tinnitus was a symptom associated with his hearing loss. In an October 2013 private opinion, Dr. C.C. stated that the Veteran’s tinnitus was related to his in-service noise exposure. The physician acknowledged that there was no worsening of pure tone thresholds at enlistment or separation, but stated that there was more likely than not some cochlear and inner ear hair cell damage, which contributed to the Veteran’s tinnitus. She further stated that the Veteran’s tinnitus was consistent with artillery noise-induced cochlear hair cell damage. In various lay statements, the Veteran has asserted that he served as a military police officer, where he protected a flight line and was constantly exposed to aircraft jet engine noise. He contends that he has bilateral tinnitus as a result of this exposure. The Veteran also submitted a July 2013 statement by his wife, stating the Veteran’s tinnitus had been “very bad” for about five years. Given the Veteran’s statements regarding exposure to aircraft noise during service, as well as his confirmed assignment to a base flight line, the Board finds that in-service noise exposure has been established. The Board finds the Veteran’s lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. In particular, the Board finds the Veteran competent to report ringing in the ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). While the July 2013 VA examination provided a negative nexus opinion regarding whether the Veteran’s tinnitus was related to his active duty service, the Board finds that, given the Veteran’s credible lay statements and the October 2013 private opinion, the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. Increased Rating The Veteran contends that his service-connected low back disability warrants higher ratings than currently assigned. A 20 percent rating is effective for the period from February 5, 2013 to September 5, 2017, and a 40 percent rating is effective thereafter. For the reasons that follow, the Board concludes that increased ratings are not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The current rating schedule provides for the evaluation of all spine disabilities, including degenerative arthritis of the spine (DC 5242) and intervertebral disc syndrome (DC 5243), under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Rating Formula, a 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. Normal range of motion of the thoracolumbar spine is forward flexion to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right rotation. See 38 C.F.R. § 4.71a, General rating Formula for diseases and Injuries of the Spine, Note (2); see also 4.71, Plate V. Unfavorable ankylosis is defined, in pertinent part, as ‘a condition in which the entire thoracolumbar spine... is fixed in flexion or extension.’ Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, at Note (1). If intervertebral disc syndrome (IVDS) is present, a lumbosacral spine disability may also be rated under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined. Id.; see also 38 C.F.R. § 4.25. Turning to the evidence of record, during December 2012 and January 2013 chiropractor visits, the Veteran denied any radiation of pain, numbness, or tingling. There was moderate restriction of extension and left lateral flexion, with pain. The provider noted that the Veteran had mechanical low back pain without radiculopathy. It was recommended that the Veteran avoid bed rest and he was encouraged to exercise. On VA examination in July 2013, the Veteran was diagnosed with degenerative spine disease. He reported monthly flare-ups that caused him to miss two days of work in May 2013. Range of motion testing showed forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. There was some additional limitation in range of motion after repetitive use, with a loss of 5 degrees each on forward flexion, right lateral flexion, and left lateral rotation. The examiner noted functional loss after repetitive use, including less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing or weight-bearing, and stiffness of the back after prolonged sitting, with pain extending down the left leg. There was no tenderness to palpation, guarding, or muscle spasm. Muscle strength testing showed normal strength on the left, but abnormalities were noted for right hip flexion, knee extension, and ankle plantar flexion and dorsiflexion. No muscle atrophy was noted. Deep tendon reflexes were normal for the bilateral knees and right ankle, but hypoactive for the left ankle. Sensory examination was normal and there were no signs of radiculopathy or neurological symptoms. There was no evidence of IVDS. Imaging studies showed arthritis and lumbar fracture. During an October 2013 neurosurgical consultation, the Veteran reported low back pain, occasional aching into the bilateral legs, and flare-ups affecting his balance and gait. The impression was intermittent low back pain with occasional left, possibly S1, radiculitis. On VA examination in October 2015, the Veteran reported flare-ups of increased back pain with increased radicular symptoms. He also reported functional loss with low back pain caused by activities involving trunk range of motion (bending and twisting) and weight-bearing (standing and walking). The Veteran endorsed functional loss with decreased range of motion of the back, affecting ambulation and activities requiring use of the back. Physical examination revealed forward flexion to 50 degrees, extension to 20 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation each to 30 degrees, with pain throughout. There was pain with weight-bearing, but no additional loss of function or limitation in range of motion after repetitive use. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. As the Veteran was not examined with repeated use over a period of time, the examiner stated he could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. There was no muscle spasm noted. Muscle strength testing was 5/5, without atrophy. Deep tendon reflexes and sensory examination were normal. The Veteran exhibited lower extremity radicular symptoms of intermittent pain, paresthesias/dysesthesias, and numbness, with moderate severity on the left and mild on the right. There was no ankylosis or any other neurological findings. The Veteran was noted to have IVDS, but no incapacitating episodes in the preceding 12 months. The Veteran received a VA examination in September 2017 and reported that he could only sit for about 20 minutes, stand for one hour, or lift 20 pounds, before he felt low back pain. Range of motion testing revealed forward flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 8 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 10 degrees. Pain and range of motion both contributed to functional loss. The examiner noted pain with weight-bearing and objective evidence of localized tenderness. There was no additional limitation in range of motion after repetitive use, and pain, weakness, fatigability, and incoordination did not significantly limit functional ability. There was no muscle spasm noted. Muscle strength testing was normal with no atrophy. Bilateral knee reflexes were normal and bilateral ankle reflexes were absent. Radicular symptoms included intermittent pain of the lower extremities, mild on the right and moderate on the left; mild paresthesias/dysesthesias of the bilateral lower extremities; and moderate numbness of the bilateral lower extremities. It was further noted that the severity of radicular symptoms was mild on the right and moderate on the left. There was no ankylosis. Though the Veteran had IVDS, there were no incapacitating episodes in the preceding 12 months. Based on the evidence above, the Board finds that increased ratings are not warranted at any time during the periods on appeal. For the period prior to April September 5, 2017, in order to warrant a rating in excess of 20 percent, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. The probative medical evidence does not support such a determination. Prior to September 5, 2017, the Veteran’s forward flexion was, at most, limited to 45 degrees at the July 2013 VA examination and 50 degrees at the October 2015 VA examination, which is consistent with the 20 percent rating criteria. Additionally, there was no medical evidence demonstrating ankylosis of the thoracolumbar spine. The Board finds that the Veteran’s level of impairment was consistent with a 20 percent rating, as evidenced by forward flexion less than 60 degrees and the Veteran’s reports of pain on motion. The Board notes that during the pendency of the appeal, the RO granted a rating of 40 percent for the Veteran’s low back disability, based upon the September 2017 VA examination. A rating of 40 percent is appropriate for this period, as forward flexion was limited to 30 degrees at the September 2017 VA examination. Nevertheless, the Board finds that a rating in excess of 40 percent is not warranted from September 5, 2017, as there is no evidence that the Veteran’s low back disability was productive of ankylosis at any time during this period. The Board has also considered the Veteran’s lay statements regarding the functional impact of his service-connected low back disability. The Veteran is competent to report his own observations with regard to the severity of his low back disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has reported complaints of pain, weakness, fatigue, and decreased motion. In particular, he noted pain after bending and twisting, sitting for 20 minutes, standing for one hour, or lifting 20 pounds. He also reported that flare-ups affected his balance and gait. These statements are credible and consistent with the ratings assigned. The occurrence of lumbar pain while performing such activities is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on examination, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained healthcare professionals are of greater probative weight than the Veteran’s more general lay assertions. The Board acknowledges the Veteran’s subjective complaints of difficulty with prolonged sitting, standing, or lifting weight, due to his back pain. In October 2013, the Veteran reported flare-ups affecting his balance and gait. During the September 2017 VA examination, he stated he could only sit for 20 minutes or lift 20 pounds, before he felt pain. Moreover, the July 2013 VA examiner noted functional impairment of less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing or weight-bearing, and stiffness of the back after prolonged sitting during the examination. It is evident that for the duration of his appeal, the Veteran’s back pain has resulted in some functional loss. However, the evidence of record does not demonstrate that the Veteran’s range of motion was so functionally limited that it restricted his forward flexion to 30 degrees or less prior to September 5, 2017 or resulted in ankylosis. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202. The Court has held that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell, 25 Vet. App. at 36-38. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In the instant case, the evidence of record does not support a finding that the Veteran’s back pain affects the normal working movements of the body. For example, throughout the appeal period, the Veteran has been noted to walk without the use of any assistive devices. The July 2013 VA examiner noted that the Veteran was employed as a letter carrier and used a vehicle for deliveries. Additionally, the September 2017 VA examiner noted the Veteran was able to stand for one hour. The Board acknowledges that the Veteran experienced functional loss as a result of his low back disability, but finds that these symptoms do not rise to the level of affecting the normal working movements of the body so as to constitute functional loss warranting a rating in excess of 20 percent prior to September 5, 2017 or in excess of 40 percent thereafter, because the Veteran exhibited the strength, coordination, and endurance to conduct activities such as driving, walking, and standing. The Board notes that in an October 2015 rating decision, the RO granted separate ratings for the Veteran’s radicular symptoms, based upon the October 2015 VA examination. Ratings of 20 percent for the left lower extremity and 10 percent for the right lower extremity are effective from July 21, 2015, under DC 8520. The Board finds that the Veteran’s lower extremity radicular symptoms are adequately addressed by these ratings, as the October 2015 VA examiner determined the Veteran’s paralysis was moderate on the left and mild on the right. Although the Veteran has a diagnosis of IVDS, the Board finds that evaluation under the Formula for Rating IVDS would not result in higher ratings under Diagnostic Code 5243 because the medical evidence of record does not demonstrate incapacitating episodes requiring physician-prescribed bed rest for the Veteran’s low back disability at any time during the period on appeal. See 38 C.F.R. § 4.71a, Formula for Rating IVDS. Even considering the subjective reports by the Veteran regarding missing two days of work in May 2013 due to his low back disability, there is no evidence of incapacitating episodes lasting at least 4 weeks. As such, an evaluation under the Formula for Rating IVDS would not result in higher ratings. As noted above, the VA examiners considered the Veteran’s reported pain when evaluating the Veteran’s range of motion, and the Board has considered the current disability ratings based on reported limitation of motion. There is no other evidence demonstrating that the Veteran has greater limitation of motion than recorded at the VA examinations, even considering additional limitations due to pain. The Board has also considered the functional loss noted during the VA examinations, including weakness, fatigability, and incoordination. In consideration of all pertinent disability factors, there is no appropriate basis for assigning a schedular rating in excess of 20 percent from February 5, 2013 to September 5, 2017, or a rating in excess of 40 percent thereafter, for the functional impairment of the Veteran’s lumbar spine. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2002), 5242. The preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to his in-service noise exposure, to include working on a flight line as a military police officer. As previously noted, the Board finds that in-service noise exposure has been established, given the Veteran’s statements regarding exposure to aircraft noise during service. The Veteran received a VA examination in July 2013 and the examiner found that the Veteran’s bilateral hearing loss was less likely than not related to his military service because the Veteran had normal hearing loss at entrance and separation with no significant threshold shifts. The Board finds the July 2013 opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. The examiner based her negative opinion, in part, on the fact that the Veteran’s hearing was within normal limits at separation. However, Hensley v. Brown, 5 Vet. App. 155, 157 (1993), makes clear that no objective evidence of having hearing loss during military service or at separation from service is not fatal to a service connection claim. Further, the Board observes that Court of Appeals for Veterans Claims (Court) has recently directed attention to the Institute of Medicine (IOM) report. 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 to 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). Although the examiner did not specifically cite the IOM report in her opinion, the Board finds that consideration of a possible delayed onset of the Veteran’s perception of his hearing loss is still warranted. Thus, the Board finds given the Veteran’s in-service noise exposure and the Court’s decision regarding the IOM report, an addendum opinion that reflects consideration of the above should be obtained. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate clinician to address the etiology of the Veteran’s bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss had its onset in, or is otherwise related to, active service, including established noise exposure sustained therein. The absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. Moreover, the examiner must discuss the IOM Report on noise exposure in the military, which states that it is “unlikely” that the onset of hearing loss begins years after noise exposure occurs, but also states that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” Specifically, the examiner must determine whether the Veteran had a delayed awareness of the effects of noise on his hearing after his established in-service noise exposure. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel