Citation Nr: 20021604 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-03 160A DATE: March 26, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1972 to June 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Veteran testified before the undersigned during an April 2016 Board hearing. This matter was previously before the Board in July 2016 and July 2018, when it was remanded for additional development. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the prior July 2018 remand, the Board directed the agency of original jurisdiction to obtain a new examination because the previous February 2017 VA audiological examination was inadequate due to its failure to address the lay evidence of record regarding the onset of hearing loss shortly after service and the post-service continuation of hearing loss symptoms as described by the Veteran and his daughter, as had been requested in the Board’s prior remand directives. A May 2019 VA examiner provided a negative nexus opinion on a similar basis as the prior February 2017 VA examiner, citing pre-existing mild, low frequency hearing loss noted on the Veteran’s September 1972 enlistment examination and a lack of hearing loss shown on hearing exams in February 1977 or at separation. The examiner also cited the same 2005 Institute of Medicine study as the February 2017 examiner. Despite including the full text of the Board’s July 2018 remand directive in the body of the report, the May 2019 VA examiner failed to address any lay evidence provided by the Veteran in this case. This failure to comply with the Board’s directive renders this examiner’s opinion inadequate. See Stegall, 11 Vet. App. 268. Therefore, a new opinion must be obtained. The Veteran’s attorney has also disputed the examiner’s reliance on the 2005 Institute of Medicine study, noting that the study found there was little evidence available to address whether noise-induced hearing loss progresses after exposure ends and that there was a lack of longitudinal studies of humans or animals who did not develop hearing loss at the time of noise exposure. For this reason, the Veteran argues the study does not provide any authority showing that delayed onset hearing loss does not exist. The Veteran has also submitted an additional field study related to hearing loss in service members who performed similar duties to those he performed in service. The United States Court of Appeals for Veterans Claims (Court) has held the Board must address arguments challenging the existence and impact of medical literature on the probative value and adequacy of a negative VA medical opinion. McCray v. Wilkie, 31 Vet. App. 243, 259 (2019). On remand, if the VA examiner relies on the 2005 Institute of Medicine study in coming to a negative opinion, they must address the Veteran’s arguments. Furthermore, the examiner should address the findings of the medical literature submitted by the Veteran. The Board notes that the Veteran’s attorney has argued for application of the presumption of aggravation under 38 C.F.R. § 3.306(a) in light of the pre-existing low frequency hearing loss noted on the Veteran’s September 1972 enlistment examination and lay statements indicating his condition was worse after service; however, the premise of this argument is based on the inaccurate contention that the Veteran entered service in 1974 and that the September 1972 examination was not an accurate reflection of his condition on entry to service. The Board observes that the Veteran’s file contains two DD-214s covering the periods from September 1972 to June 1974 and June 1974 to June 1978, respectively. As the record shows the Veteran entered service in September 1972, the same month as his enlistment examination, and served continuously in the Army until separation in June 1978, the enlistment examination reflects his condition at entry to this period of active service. Veterans are presumed sound upon entry into military service unless a disability was noted upon entry. Hearing loss not meeting VA’s definition in 38 C.F.R. § 3.385 is not a “defect, infirmity, or disorder” and, thus, veterans are entitled to the presumption of soundness when abnormal hearing not indicative of a hearing loss disability under 38 C.F.R. § 3.385 is noted on the Report of Medical Examination upon entry into service. McKinney v. McDonald, 28 Vet. App. 15, 21-24, 29 (2016) As previously noted, the two most recent VA examination opinions have included findings that the Veteran had pre-existing low-frequency hearing loss based on 40 decibel thresholds at the 500 Hertz level on his September 1972 enlistment examination. These findings appear to be based on an audiogram chart in the Veteran’s service treatment records showing the noted bilateral elevated thresholds. Despite this, the September 1972 Report of Medical Examination shows the Veteran’s 500 Hertz threshold was below 40 dB, meaning he did not have hearing loss as defined under 38 C.F.R. § 3.385 noted upon entry into service, particularly in light of the notation on the examination report that indicates the Veteran had no defect that would disqualify him from service. As the September 1972 examination report does not note a hearing loss disability on entry, the Board finds the presumption of soundness attaches in this case. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). There is no clear and unmistakable evidence to show a hearing loss disability prior to service – as previously noted – there are two audiograms from September 1972, one of which appears to show hearing loss and one of which does not show hearing loss. Therefore, the Board cannot conclude that the evidence shows that hearing loss clearly and unmistakably pre-existed service and finds that the presumption of soundness has not been rebutted. Accordingly, the question is one of direct service connection. The matters are REMANDED for the following action: 1. Refer the file and obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current hearing loss disability. Schedule an examination only if deemed necessary by the clinician. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to hazardous noise during service. The examiner is reminded that the Court has held that hearing loss noted on entry to service must meet the requirements for a hearing loss disability under 38 C.F.R. § 3.385 to qualify as a pre-existing condition. As the Veteran’s September 1972 Report of Medical Examination does not show a hearing loss disability under 38 C.F.R. § 3.385, the Veteran is presumed sound as to his hearing at the time he entered military service. Accordingly, the examiner must ignore any evidence that suggests the Veteran had a hearing loss disability prior to military service. The examiner should address the arguments and medical literature submitted by the Veteran and his representative relating to hearing loss disabilities developed by other Veterans who served in similar roles. Furthermore, if the examiner relies on the 2005 Institute of Medicine study titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” the examiner must address the arguments presented by the Veteran’s representative in his October 2019 memorandum challenging the probative value of this study. The examiner is advised that the Veteran is competent to report his symptoms and history, to include the lay evidence of record, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examiner’s report must include a complete rationale for the opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.