Citation Nr: 18158198 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 13-32 740 DATE: December 14, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1954 to October 1957 and from May 1958 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. As noted in the Board’s November 2017 remand, the Veteran neither appeared at the scheduled February 2016 Board hearing nor requested a new hearing, and accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In May 2016 and November 2017, the Board remanded this issue for further development, and the case has been returned for appellate consideration. As discussed below, the Board finds that there has not been substantial compliance with its November 2017 remand directives and, therefore, it may not proceed with a determination on the merits at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is the result of in-service hazardous noise exposure, particularly from jet engines while serving twenty years as an aircraft maintenance technician,G43171E, in the Air Force. In June 2012, the Veteran was afforded a VA examination, during which he reported noticing reduced hearing acuity in the 1970s while he was still in service. Sensorineural hearing loss was diagnosed for the right ear and mixed hearing loss was diagnosed for the left ear. The examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in service. The examiner stated that the Veteran’s service audiograms showed normal hearing acuity except for in October 1972, showing a puretone threshold of 40 decibels at 6000 Hz in the left ear. It was noted that the Veteran’s audiogram upon separation from service showed normal hearing acuity. The examiner concluded that while in service, the Veteran’s hearing sensitivity remained within normal limits. In its November 2017 remand, the Board found the June 2012 opinion inadequate for failing to consider the Veteran’s competent evidence as to onset of hearing loss, failing to consider the entirety of the Veteran’s service treatment records, and essentially relying solely upon the October 1973 report of examination for retirement. On the Veteran’s September 2012 notice of disagreement, he stated that he was not afforded an audiological examination when he retired from service. In a September 2012 statement to his congressman, the Veteran reiterated that he did not undergo an audiology examination when he separated from service. In June 2016, the Veteran was afforded a new VA examination. On the report the examiner indicated that the Veteran’s hearing could not be tested, stating that the Veteran was either unable or unwilling to provide consistent and reliable responses. Based upon a review the Veteran’s claims file, the examiner indicated that there were significant changes in hearing threshold bilaterally in service. Stating that the audiogram is the objective standard for noise injury, the examiner opined that because the Veteran’s hearing was normal at retirement, there is no evidence that military noise exposure caused a permanent noise injury. It was concluded that it was less likely than not that the Veteran’s hearing loss was caused by or a result of military noise exposure. As for the June 2016 VA examination report, in its November 2017 remand, the Board found it likewise inadequate. The Board directed that on remand the examiner was “specifically instructed to address the Veteran’s testimony regarding the in-service onset of his hearing loss. If a negative nexus opinion is provided, the examiner must also reconcile this with the June 2016 examiner’s positive nexus opinion regarding the Veteran’s tinnitus.” The Board notes that in a June 2016 rating decision, service connection for tinnitus was granted. In January 2018, the Veteran was afforded a third VA examination for hearing loss, during which bilateral sensorineural hearing loss was diagnosed. The negative nexus opinion was essentially a cut and paste, with slight paraphrasing, of the rationale provided in the June 2016 VA nexus opinion. As such, it does not substantially comply with the Board’s November 2017 remand directives, and therefore, the Board must remand this matter again. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Stegall v. West, 11 Vet. App. 268, 271 (1998) (stating that a remand by the Board confers on the Veteran, as a matter of law, the right to have compliance with its remand directives). Furthermore, the Board notes that, in the Veteran’s service treatment records, the data reported on the physical examination reports is consistently different than the data on the Hearing Conservation Data reports. The Hearing Conservation Data reports show that the noise source was jet engines and hearing protection was worn, and it was consistently indicated that the Veteran’s hearing was fair. An August 1969 audiogram on a Hearing Conservation Data report shows the Veteran’s puretone thresholds for the left ear were 25 decibels at both 500 and 3000 Hz, which might be considered borderline disability for VA purposes. See 38 C.F.R. § 3.385 (finding disability when at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater). Likewise, an October 1972 audiogram on a Hearing Conservation Data report shows puretone thresholds of 25 decibels at 2000 and 3000 Hz, as well as 40 decibels at 6000 Hz for the left ear and 25 decibels at 2000 and 3000 Hz for the right ear. The Board notes that, although the Veteran did not have a hearing disability for VA purposes while in service, the evidence establishes that he did have reduced hearing acuity while in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (“Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.”). On remand, a VA examination is required to determine the etiology of the Veteran’s bilateral hearing loss, taking into account the record evidence and accepted medical principles. 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his hearing loss. The electronic claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. The audiometry examination must include a speech recognition test using the Maryland CNC wordlist and a puretone audiometry test. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss disability began in service, was caused by service, or is otherwise related to service, including noise exposure therein. If a negative nexus opinion is provided, the examiner is specifically instructed to address: (a) the Veteran’s credible reporting of reducing hearing acuity in the 1970s while he was on active duty; (b) the Veteran’s credible claim that he did not undergo an audiology examination upon retirement from service; (c) the consistent discrepancies in puretone thresholds on audiograms reported on the Veteran’s Hearing Conservation Data reports compared to reports of physical examinations; (d) the numerous frequencies recorded on the August 1969 and October 1972 Hearing Conservation Data reports having puretone thresholds of 25 decibels and whether this is evidence of in-service hearing loss at those frequencies, and (e) reconcile any negative nexus opinion with the June 2016 examiner’s positive nexus opinion regarding the Veteran’s tinnitus. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A thorough explanation for any opinion must be provided. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   2. After completing the above action and any other development as may be indicated by any response received as a consequence of the action taken in the paragraph above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney