Citation Nr: 21000457 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-30 620 DATE: January 5, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an increased rating for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to October 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In July 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to an increased rating for left ear hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to a compensable rating for left ear hearing loss. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the rating of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate or incomplete, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regard to the claim for an increased rating for left ear hearing loss, the Board notes that the Veteran was most recently provided a VA examination in June 2016, more than four years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, the Board notes that claims of a worsening condition regarding the Veteran's hearing have been made by the Veteran since that examination. Specifically, the Board notes that, during a July 2019 Board hearing, the Veteran alleged a worsening in severity of the service-connected disability. When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examination appears to no longer indicate the Veteran's current level of disability. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claims for increased rating for left ear hearing loss. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 2. Entitlement to service connection for right ear hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for right ear hearing loss. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current right ear hearing loss disability is the result of noise exposure in service. Specifically, the Veteran believes that exposure to acoustic trauma while serving as a nuclear welder caused a current right ear hearing loss disability. At a September 2014 VA examination, the examiner found that it was at least as likely than not (less than 50 percent probability) that left ear hearing loss only was caused by or a result of an event in service. The examiner supported that conclusion by stating that there was a significant shift in the Veteran’s hearing thresholds at 2000 Hertz and 4000 Hertz in the left ear while on active duty. The Veteran worked in the engine room of the ship for five years without the use of hearing protection. However, there was not a preexisting loss or a loss upon exiting service in the right ear, while the left ear had a significant decrease at 2000 Hertz and 4000 Hertz during service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies solely only on the absence of symptoms or treatment in service is not adequate. A lack of medical evidence in the service medical records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to a service connection claim). As the September 2014 VA examiner relied on the absence of symptoms or treatment in service for the negative opinion concerning the demonstrated right ear hearing disability, the opinion is inadequate. Therefore, remand is necessary for an adequate etiology opinion regarding right ear hearing loss. VA attention has been directed to a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss. 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, that statement does not indicate the full extent of the report's findings pertinent to the matter. 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." Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47, 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). Therefore, 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 all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for hearing loss. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Schedule the Veteran for a VA audiology examination with an examiner who has not previously examined the Veteran. The examiner must review the claims file, to include this Remand in its entirety; the Veteran’s lay statements, including hearing testimony, concerning in-service noise exposure and hearing loss symptoms; the previous VA examination; and the IOM report concerning an individual’s delayed awareness on the effects on hearing from noise, and the onset of current symptomatology, and should indicate review of the file in the examination report. The examiner should provide information as to the current nature and severity of left ear hearing loss. The examiner should conduct audiometric testing and a speech recognition examination using the Maryland CNC test. The examiner should opine as to the occupational impairment caused by hearing loss. The examiner should opine whether it is clear and unmistakable (undebatable) that any diagnosed right ear hearing disability preexisted the Veteran's entrance to service. The examiner should cite to any records that clearly and unmistakably establish preexistence of hearing loss in the right ear prior to service. If any diagnosed right ear hearing disability clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that right ear hearing disability was not aggravated during service. The examiner should reference the evidence that supports that opinion. The examiner should state whether any preexisting right ear hearing disability increased in severity during service and if so, whether any increase in severity represented, or was more than, the natural progress of the disorder. If any diagnosed right ear hearing disability did not clearly and unmistakably preexist service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any portion of the Veteran's right ear hearing loss is etiologically related to active service or any event, disease, or injury during service, including whether any right ear hearing disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to include tinnitus and left ear hearing loss, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include tinnitus and left ear hearing loss. The examiner is advised that the Veteran is competent to report his symptoms during and since service and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service record. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.