Citation Nr: 21004150 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-56 487 DATE: January 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January 1960 to January 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in February 2020. A transcript of the hearing is of record. Subsequently, in August 2020, the Board remanded the claim for further development. Entitlement to service connection for bilateral hearing loss is remanded. Following the August 2020 Board remand, the Veteran attended a VA examination in October 2020 for an evaluation of his bilateral hearing loss. Following the examination, the VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not a result of his in-service noise exposure. In support of the opinion, the VA examiner cited to a 2006 Institute of Medicine (IOM) report that addressed delayed onset hearing loss. The VA examiner also noted how the Veteran’s separation examination was normal and showed no evidence of threshold shift during service. Furthermore, the VA examiner noted the Veteran’s report at his September 2014 VA examination that he noticed his hearing loss 30 years prior to the examination, and the Veteran’s spouse’s report at the 2020 Board hearing that the Veteran has had hearing loss for at least the 37 years that she has known him, both of which date back to approximately 20 years after the Veteran’s separation from service. In addition, the examiner noted the Veteran’s civilian noise exposure while working for a commercial airline after his service. The VA examiner also noted that presbycusis, given the Veteran’s age at the time of the September 2014 VA examination and the October 2020 VA examination, is a significant factor contributing to his hearing loss. The VA examiner then concluded that “as it is clearly documented that the [Veteran’s] hearing was normal to calibrated audiometry at the time of his separation with no evidence of a decrease in hearing acuity during military service, there can be no nexus found between the [Veteran’s] current hearing loss and military service.” In December 2020 written argument, the Veteran’s representative alleged that the opinion did not consider the whole of the Veteran’s statements regarding post-service noise exposure and placed too much emphasis on the Veteran’s work at U.S. Airways during the latter part of his post-service careers after many years working in a barbershop and as the owner of a Hallmark store and ice cream parlor. Additionally, the Veteran’s representative raised a new theory of entitlement that the Veteran’s bilateral hearing loss is secondary to his service-connected hip disability and the taking of Naprosyn for the condition. The Veteran’s representative submitted the summary of an article indicating that hearing loss may be a side effect of the medication. Additionally, the Veteran’s representative noted that the opinion relied in large part on the 2006 IOM study. In June 2019, the U.S. Court of Appeals for Veterans Claims (Court) held that the Board must address a medical text that serves as the basis for a medical opinion which contains apparent qualifiers or contradictions to explain whether those aspects of the medical text diminish the probative value of the medical opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court provided that the Board may seek clarification from the medical professional if assistance in understanding or interpreting the underlying the medical text evidence is required. See id. Indeed, the medical study relied on here is the same one discussed by the Court in McCray. Thus, if reliance on the IOM report is continued, then clarification is required as the report contains contradicting information on how there is insufficient evidence from definitive studies to support the lack of a causal link between one’s delayed hearing loss and prior noise exposure. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records from November 2020 to the present. 2. Obtain an addendum opinion from the October 2020 VA examiner, if available, or another appropriate medical professional if the October 2020 VA examiner is not available. If the examiner determines that an examination (including via telehealth) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the examiner should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss is related or attributable to his military service, including noise exposure trauma during service? In providing an opinion on this question, the examiner should address the Veteran’s lay statements, including statements from the February 2020 hearing, regarding his exposure to loud noise from a grenade explosion in service and the nature of his post-service employment. The examiner should also address statements regarding the onset of bilateral hearing loss. It should be noted that the absence of in-service evidence of a hearing 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the medical professional relies on the IOM report regarding delayed onset of hearing loss after noise exposure as rationale for any opinion, then the examiner must address and explain the following citation from the IOM report: “There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop mush later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. (emphasis added).” (b.) Is it at least as likely as not that the Veteran’s bilateral hearing loss is caused or aggravated (i.e., any increase in the severity of the condition beyond its natural progression) by his service-connected hip disabilities, including long term Naprosyn use for the hip conditions? The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.