Citation Nr: 18155210 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-17 164 DATE: December 4, 2018 REMANDED The appeal as to the claim of entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from March 1961 to January 1965. His service was under honorable conditions. This matter is on appeal from an August 2010 rating decision. In an August 2016 decision, the Board, having determined that new and material evidence had been received, reopened the claim of entitlement to service connection for bilateral hearing loss, and remanded the issue of service connection for additional development. In a November 2017 decision, the Board denied the claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the November 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 Joint Motion for Remand (JMR), the parties stipulated that the November 2017 Board decision should be vacated, and in July 2018, the Court granted the JMR. The matter has since been returned to the Board. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current bilateral hearing loss is related to his active service; specifically, because of the aircraft he flew in and how it was “known” to cause hearing loss in numerous personnel. In addition, he also asserts that he experienced hearing problems since January 1963 due to cyst formation in his ears and subsequent in-service surgery. In this regard, the Veteran notes that his ears were compressed in a headset for eight to twelve hours a day causing small cysts, and on occasion they broke and leaked. In July 2010 and August 2018 statements, the Veteran’s wife noted that she knew the Veteran since 1967, and reported that he experienced hearing difficulty that progressively worsened since that time to the present. Likewise, in an August 2018 statement, the Veteran’s sister reported that she recalled the Veteran telling her about his ten-hour flights during service, which involved high noise levels without the use of hearing protection. She also reported that she noticed the Veteran’s hearing problems in approximately 1964, when he started to hold his hand up to his right ear, to funnel sound into his ear. Service treatment records include a May 1962 induction examination that demonstrates normal audiometric testing. A January 1963 record notes the Veteran’s complaint of ear problems; the examiner found cysts in the Veteran’s ears and surgery was performed. The January 1965 separate examination did not include an audiometric evaluation. A whisper test was normal, bilaterally. Post-service records include private treatment records dated August 1968, during which the Veteran reported hearing loss, specifically, in the right ear. G.S., M.D., noted swollen canals and a possible incision cyst. The Veteran was treated with irrigation and a solution; improvement was noted. An October 1968 record included G.S.’s comment, “doubted significant hearing loss.” VA examiners in December 1968 and May 1970 noted asymptomatic cysts, flare-ups, and no hearing problems. Private treatment records from K.P. dated May 1985 demonstrate bilateral sensorineural hearing loss. See 38 C.F.R. § 3.385. The Veteran underwent a VA examination in January 2006, during which he reported a worsening of hearing since active service. Upon examination and review of the record, the examiner diagnosed bilateral sensorineural hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was “less likely” caused by or a result of active service. In providing this opinion, the examiner noted that the post-service medical evidence did not demonstrate a diagnosis until 15 years after separation from service. The Veteran underwent another VA examination in January 2017. Upon examination and review of the record, the examiner found that the Veteran’s current bilateral hearing loss was “less likely” caused by or a result of active service. In providing this opinion, the examiner noted that the Veteran’s hearing loss developed well after separation from service. The examiner further noted that the current bilateral hearing loss was “less likely” caused by the service-connected bilateral ear cyst disability. The examiner indicated that the surgical procedures performed on the Veteran’s ears during service resulted in ear canals that are significantly narrower than would otherwise be expected. She stated that the Veteran’s current sensorineural bilateral hearing loss values were not affected by the narrowing of the Veteran’s ear canals. The examiner also opined that the current bilateral hearing loss was not aggravated by the Veteran’s service-connected bilateral ear cyst disability. In providing this opinion, she noted that the Veteran’s hearing was not affected by the cyst surgeries during service, and that there was no evidence that hearing loss developed during service or within a year after separation from service. The January 2006 and January 2017 VA examiners’ opinions are inadequate to adjudicate the claim, as they failed to consider the Veteran’s assertions, that his bilateral hearing loss symptoms began during active service in January 1963 and progressively worsened since such time. Further, the examiners also failed to consider the relevant lay statements of record from the Veteran’s wife and sister. In addition, although the examiners reportedly reviewed the record, it is unclear to the Board if they considered the post-service private treatment records dated August 1968, during which the Veteran reported hearing loss, and the October 1968 record that included G.S., M.D.’s comment, that he “doubted significant hearing loss.” Therefore, the issue must be remanded for an adequate VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, development to obtain any outstanding medical records pertinent to the Veteran’s claim should be completed. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA examiner who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the examiner assigned to offer an opinion. Following a review of the record, the examiner should state a medical opinion with respect to the bilateral hearing loss present during the period of the claim. The examiner must address the following: Is it at least as likely as not (i.e., at least 50 percent probable) that the current bilateral hearing loss disorder is etiologically related to the Veteran’s active service and/or manifested within a year of service discharge? In providing the opinion, the examiner must discuss the theory of delayed or latent onset of hearing loss. If the examiner determines that hearing loss is not related to service, he/she should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the bilateral hearing loss was caused or permanently worsened by the service-connected bilateral ear cyst disability. In providing the opinions, the examiner must discuss the Veteran’s statements, as well as relevant lay statements of record. Specifically, the Veteran reported that he first noticed hearing problems in January 1963, during active service, when he underwent surgery for the removal of bilateral ear cysts. He also reported that his hearing progressively worsened since active service. The Veteran’s wife reported that the Veteran’s hearing loss progressively worsened since 1967 to the present. The Veteran’s sister reported that she first noticed the Veteran’s hearing problems in 1964, when he started to hold his hand up to his right ear to funnel sound into his ear. The examiner must comment on the January 2006 and January 2017 VA examiners’ opinions, as well as the post-service private treatment records dated in August 1968, when the Veteran reported hearing loss, and the October 1968 record that includes G.S., M.D.’s, comment that he “doubted significant hearing loss.” For purposes of the opinions, the examiner should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, the Agency of Original Jurisdiction should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel