Citation Nr: 21004142 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-29 647 DATE: January 26, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1969 to November 1971. This matter was previously before the Board in April 2018 and May 2020 at which time it was remanded for further evidentiary development. Although the Board regrets the additional delay, remand is again needed before a decision may be rendered on the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran’s claim originated as a claim for service connection for bilateral hearing loss. In a January 2020 rating decision, service connection for right ear hearing loss was granted. Entitlement to service connection for left ear hearing loss is remanded. The Veteran’s military occupational specialty was armor reconnaissance specialist and exposure to military noise has been conceded. His service entrance and separation audiograms displayed normal hearing with no hearing acuity threshold shifts. In a February 2003 VA treatment record, it was noted that the Veteran displayed a mild to moderate high frequency sensorineural hearing loss bilaterally. A May 2008 audiogram demonstrated current bilateral hearing loss for VA purposes. As such, the Veteran has conceded exposure to military noise and a current hearing loss disability for VA purposes in his left ear. Over the course of the appeal, multiple VA opinions have been obtained to determine the etiology of the Veteran’s left ear hearing loss. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 5 Vet. App. 155, 159 (1993). Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Specifically, because there was no evidence of hearing loss or hearing acuity threshold shift in the Veteran’s in-service audiograms, the VA examiners were asked to provide a medical rationale as to why the Veteran’s current hearing loss was not related to his in-service noise exposure. Unfortunately, the VA opinions of record based their conclusions almost entirely upon a finding that there was no evidence of hearing loss or significant threshold shift in hearing acuity during active service. The Veteran underwent a VA examination in June 2013 which demonstrated bilateral hearing loss. He described great difficulties understanding conversational speech in noise or at distances without visual cues. The examiner determined that the Veteran’s bilateral hearing loss was less likely than not related to service. In support, he stated that despite significant noise exposure as a Vietnam combat veteran, hearing sensitivity was reported to be normal with no significant threshold shift at discharge. As such, hearing loss was less likely related to military noise exposure and instead related to events which occurred thereafter. An addendum opinion from the same examiner was obtained in July 2013 which stated that a review of the Veteran’s service treatment records (STRs) found normal hearing sensitivity and no significant threshold shift at separation. As such, and based solely upon that evidence, hearing loss was less likely than not related to active service. In November 2013 statements, the Veteran described not having any difficulties hearing prior to service. However, after he returned from Vietnam, his wife would comment about him not hearing well. He would not hear his car blinker and needed people to repeat themselves frequently. He also had to lean in towards people in order to hear better. As the prior opinions were based only upon a lack of demonstrated hearing loss in service, the April 2018 Board remand requested a new examination and opinion to determine whether the Veteran’s hearing loss was related to his active service including his presumed in-service noise exposure. The examiner was asked to consider the November 2013 lay statements and was reminded that even though hearing loss may not be demonstrated in service, that did not preclude service connection. Another VA examination was conducted in November 2019 which demonstrated hearing loss bilaterally. The examiner determined that the Veteran’s right ear hearing loss was at least as likely as not related to service; however, his left ear hearing loss was less likely than not the result of service because according to the STRs, hearing was documented to be within normal limits at separation without shifts. An addendum from the November 2019 examiner was obtained in January 2020. She merely stated “Opinion given and stands. It is possible to have unilateral hearing loss.” As the opinions of record still did not provide an adequate rationale for left ear hearing loss that was not based entirely upon a lack of evidence of hearing loss in service, a May 2020 Board remand again requested an addendum opinion. The remand directives included a request that the clinician providing the opinion review the claims file and include discussion of the Veteran’s lay statements, including the November 2013 statement. If the clinician discounted the statements, an explanation was requested to be provided. Subsequently, the November 2019 examiner stated in a June 2020 opinion, “Again, opinion given and stands. Significant asymmetry will occur if the noise source is closer in proximity to one side than the other.” The same clinician stated in September 2020 that the Veteran’s November 2013 statements and 1971 audiogram had been reviewed. She then stated “Opinion and rational[e] have already been given. Left ear less likely as not caused by or a result of military noise exposure. Not sure what else can be said.” The opinions obtained since the last Board remand did not substantially comply with the remand requests. The clinician did not provide an opinion that was based on more than a lack of documented hearing loss in service, did not include discussion of the Veteran’s lay statements, and did not explain why his statements were discounted. As such, remand is again needed to obtain a new VA medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified VA examiner other than the examiner who provided the November 2019, January 2020, June 2020, and September 2020 opinions, to determine the nature and etiology of the Veteran’s left ear hearing loss. The need for an additional examination is left to the discretion of the clinician providing the opinion. The claims file should be made available to the clinician for review of the case. After reviewing the claims folder and noting that it has been reviewed, the clinician is specifically asked to answer the following: (a.) Determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss had its onset during, or is otherwise related to, his conceded noise exposure. (b.) Any opinion must be supported by a medical rationale which is based on more than a lack of in-service evidence of hearing loss. The clinician is asked to discuss the Veteran’s lay statements regarding his noise exposure in service and the onset of his hearing loss symptoms. The clinician should focus specifically on whether the noise exposure in service caused any current hearing impairment. Facts and medical principles relied upon to arrive at an opinion should be set forth, including any principles relating to the possibility of a delayed onset of loss of acuity due to noise exposure in service. (c.) The clinician is reminded that the Veteran is competent to report his symptoms and history and such reports should be considered in formulating any opinion, specifically to include his November 2013 lay statements. If the clinician discounts the statements, an explanation should be provided. (Continued on the next page)   (d.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. If medical literature is relied upon in rendering the opinion, the clinician should identify and cite each reference material utilized. 2. After completing the above, and any additionally indicated development, readjudicate the claim. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.