Citation Nr: 21004522 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-50 128A DATE: January 27, 2021 REMANDED Entitlement to service connection for hearing loss of the left ear is remanded. Entitlement to an initial compensable rating for hearing loss of the right ear is remanded. Entitlement to service connection for osteomyelitis, as due to ionizing radiation, is remanded. Entitlement to service connection for a bilateral hip disability, secondary to osteomyelitis, is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities, secondary to osteomyelitis, is remanded. Entitlement to service connection for a back scar, secondary to osteomyelitis, is remanded. REASONS FOR REMAND The Veteran served in the Air Force from October 6, 1965 to February 5, 1965. In July 2020, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. 1. Entitlement to service connection for hearing loss of the left ear is remanded. The Veteran contends that he has hearing loss of his left ear that is related to noise trauma during service. The Veteran attended a VA examination in March 2014. While the Veteran’s right ear was found to be service-connected, the Veteran’s left ear was not. The examiner explained that there was a significant threshold shift during service for the Veteran’s right ear, but there was not a similar threshold shift for the left. The Board of Veterans’ Appeals (Board) finds this opinion to be inadequate. Upon reviewing the Veteran’s STRs, the Veteran’s entrance examination has negative audiometric testing, yet the Veteran’s exit examination does not. The Board finds the record to be unclear as to whether a different type of audio examination was performed or if there was shift for all hearing thresholds, but a greater shift for the Veteran’s right ear. Further, the examiner found the shift in the threshold of the Veteran’s right ear to be “significant” but does not explain how much of a shift is required to be significant. Finally, to the extent that the examiner’s opinion relied on the Institute of Medicine report (Noise and Military Service, from September 2005) (concluding that based on current knowledge, noise induced hearing loss occurs immediately (i.e., there is no evidence to support delayed onset of noise-induced hearing loss years after exposure)), that report has been the subject of a recent court ruling. The Court of Appeals for Veterans Claims (CAVC) has addressed the particular medical study cited in the medical opinion of record in a precedential legal opinion, in the case of McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court held that if the Board relies on a negative medical opinion, it must address the Veteran’s arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. With specific regard to the IOM study, the case references contradictory findings within the study that may lead one to a different conclusion as to the potential for delayed-onset hearing loss. Specifically, the study notes that there 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. It further notes that definitive studies to address this issue have not been performed. Therefore, an addendum opinion is required. 2. Entitlement to an initial compensable rating for hearing loss of the right ear is remanded. The Veteran’s most recent examination to evaluate his hearing loss came in August 2016. Since then, the Veteran has received hearing aids. Given that the indicates that his condition has worsened since this VA examination, a remand for a new examination is required. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). (CONTINUED ON NEXT PAGE) 3. Entitlement to service connection for osteomyelitis, as due to ionizing radiation, is remanded; 4. Entitlement to service connection for a bilateral hip disability, secondary to osteomyelitis, is remanded; 5. Entitlement to service connection for radiculopathy of the bilateral lower extremities, secondary to osteomyelitis, is remanded; and, 6. Entitlement to service connection for a back scar, secondary to osteomyelitis, is remanded. The Veteran contends that he has osteomyelitis of the spine which is etiologically related to his service wherein he was exposed to high levels of ionizing radiation. The record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. While osteomyilitis is not a listed radiogenic disease, the Veteran submitted evidence indicating that it could possibly be radiogenic in nature. Accordingly, VA should develop the Veteran’s claim as directed under 38 C.F.R. § 3.311. The Veteran supplied a private opinion that includes a dose estimate. See document labeled Medical Treatment Record-Non-Government Facility, received August 10, 2020, pages 5-7 of 12. However, 38 C.F.R. § 3.311(a)(2)(iii) requires referral to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Further, because a decision on the remanded issue of service connection for osteomyilitis could significantly impact a decision on the issue service connection for a bilateral hips disability, radiculopathy of the bilateral lower extremities, and a back scar, which the Veteran claims are related to osteomyilitis. Thus, the issues are inextricably intertwined. A remand of these claims are required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiometric examination to consider the Veteran’s hearing loss. The examiner is asked to provide a response to the following: Is the Veteran’s hearing loss of the left ear at least as likely as not related to service, including exposure to acoustic trauma during service? Provide the underlying reasons in support of the opinion. The clinician should discuss the following: a) types of audiometric testing in the Veteran’s STRs and how a threshold shift is evident; and if so, b) how much of a threshold shift is needed to be “significant”. Note that the Institute of Medicine report (Noise and Military Service, from September 2005) contains contradictory findings: it concludes that based on current knowledge, noise induced hearing loss occurs immediately (i.e., there is no evidence to support delayed onset of noise-induced hearing loss years after exposure)); but also the study notes that there 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 definitive studies to address this issue have not been performed. Therefore, if relying on this report, an explanation as to why is required. 2. Develop the Veteran’s assertion that he was exposed to radiation from his military occupational specialty working with Air Force MPN-13 Ground Control Approach (GCA) Radar System. See document labeled Medical Treatment Record-Non-Government Facility, received August 10, 2020, pages 5-7 of 12. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.