Citation Nr: 21004271 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-16 089 DATE: January 26, 2021 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from July 1961 to June 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2018 and March 2020, the Board remanded the claim for additional development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Entitlement to service connection for bilateral hearing loss is remanded. Pursuant to the May 2018 Board remand, the Veteran was afforded a VA examination in February 2019. The February 2019 examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service but did not address what role the Veteran’s right ear eustachian tube dysfunction played in the development of hearing loss. An addendum opinion was obtained in June 2019. The June 2019 examiner explained that the Veteran’s bilateral hearing loss was less likely than not related to service as he did not have an auditory threshold shift during service. The June 2019 examiner referenced the Veteran’s eustachian tube dysfunction and noted that it did not pre-exist service and did not have an onset in service but did not discuss what role it played in the Veteran’s development of hearing loss. Based on the foregoing deficiencies, in its March 2020 remand, the Board found that an addendum medical opinion was warranted. Pursuant to the March 2020 Board remand, the Veteran was afforded a VA examination in November 2020. The November 2020 examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service. She explained that there was no significant permanent shift in hearing thresholds beyond test variability from the Veteran’s July 1961 entrance examination to his April 1965 separation examination, which was objective evidence of no permanent auditory damage on active duty from conceded noise exposure. She also reasoned that although the Veteran had a MOS of an administrator specialist and reported noise exposure from airplanes and engines, there was no permanent positive threshold shift during service, and he had normal hearing upon leaving service. She noted that the service treatment records and separation examination were silent for hearing loss. She also explained that the Veteran reported his onset of hearing loss in the 1980s, which was at least 15 years post separation and that there is no current research that supports late onset and noise-induced hearing loss. She stated that veterans with threshold shifts are most at risk for noise induced-hearing loss and tinnitus and referenced Noise Induced-Hearing Loss and Tinnitus in Military Personnel, available at https://www.mathewsopenaccess.com/scholarly-articles/noise-induced-hearing-loss-and-tinnitus-in-military-personnel.pdf. She concluded that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. Significantly, however, the examiner did not address what role the Veteran’s right ear eustachian tube dysfunction played in the development of hearing loss as required by the May 2018 and March 2020 Board remands. Because the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the February 2019 VA examiner additionally reasoned that according to The Institute of Medicine Study (2005) “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner noted that the IOM did not rule out that delayed-onset might exist, but because the requisite longitudinal animal and human studies have not been completed, and current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss does not support the possibility, there is no reasonable basis for delayed-onset hearing loss. Given the above, and in light of the decision in McCray v. Wilkie, 31 Vet. App. 243 (2019), remand is warranted. This Court decision highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. Specifically, the VA medical opinion involved in the McCray case noted that the IOM report concluded, in part, that there is no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicates that “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure” and that “definitive studies to address this issue have not been performed.” Any future opinion predicated on the IOM reports’ findings regarding delayed onset hearing loss must address these inconsistencies. Id. On remand, the RO must obtain a new VA medical opinion to address the above noted discrepancies, to include the Veteran’s theory of delayed-onset hearing loss. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The matter is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the onset of his hearing loss symptoms, to include whether he began to experience diminished hearing during service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Send the claims file to an otolaryngologist or another qualified audiological clinician. The need for another examination is at the discretion of the medical professional offering the addendum opinion. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The clinician should consider values converted from ASA to ISO-ANSI units for the in-service audiograms. Following a review of the record, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current bilateral hearing loss is related to his period of active duty, to include his in-service noise exposure, or that a hearing loss disability manifested within a year of his separation from service. (b.) Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. (c.) Please specifically discuss (1) the Veteran’s credible reports of in-service exposure to the noise of aircraft, including jet engines, while working near the flight line;(2) his descriptions of the nature and extent of his in-service and post-service noise exposure; and (3) the significance, if any, of his post-service treatment for right ear eustachian tube dysfunction. (d.) In formulating a medical opinion, if relying to any extent upon the IOM study noted above, the examiner must (a) identify the medical text’s qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset tinnitus is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. (e.) Please also discuss the impact of the Veteran’s in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his bilateral hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service acoustic trauma. (f.) Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. A discussion of the underlying reasons for your opinion must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. (g.) If it is not possible to provide the requested opinion without resorting to speculation, please state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); in the record (additional facts are required); or in your own knowledge or training. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.