Citation Nr: 21004818 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-44 433 DATE: January 28, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to August 1980. 1. Entitlement to service connection for bilateral hearing loss is remanded. In August 2019, the Board determined that a prior April 2018 VA examination was inadequate and consequently remanded the Veteran’s claim for service connection for bilateral hearing loss to afford him a new VA examination determining whether his bilateral hearing loss is attributable to his military service – including especially to noise exposure during his service and documented loss of some hearing acuity in service. To this end, the Veteran underwent this VA examination in January 2020; however, the Board finds even this additional examination and opinion inadequate, so the Board must again remand this claim to correct this additionally deficient examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4).   Specifically, the August 2019 Board remand directed the examiner to address the fact that the Veteran had some degree of hearing loss at separation from service. Notably, his hearing acuity had decreased bilaterally across all the tested frequencies when comparing his entrance and separation examinations. It is now well-established by caselaw (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)) that hearing loss need not be shown in service (or even necessarily soon after, so during even the one-year presumptive period following service for sensorineural hearing loss, especially) to be found service connected – provided there is now sufficient hearing loss to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability and there is the required attribution of this current disability to the Veteran’s service, as opposed to other (“intercurrent”) causes or factors. See 38 C.F.R. § 3.303(d) (explaining that service connection is permissible for a disability first diagnosed after discharge from service, if the evidence, including that pertinent to service, shows the disability was incurred in service). Therefore, the January 2020 examiner’s finding that the Veteran separated from service with normal hearing does not explain the threshold shift that occurred during his time in service. In addition, as noted in the August 2019 Board remand, the earlier April 2018 VA examination report has apparently contradictory findings regarding the notion of “delayed-onset” hearing loss. The April 2018 VA audiologist cited to an Institute of Medicine (IOM) study noting the lack of scientific evidence linking delayed onset of hearing loss many years after noise exposure where hearing was normal immediately after the exposure to refute a medical basis for a nexus between the Veteran’s current hearing loss and his military service. However, the examiner also indicated “[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.” See Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine 2006, p. 11, BOX ES-1; see also McCray v. Wilkie, No. 17-1875, 2019 U.S. App. Vet. Claims LEXIS 1015 (Vet. App. June 18, 2019). The August 2019 Board remand therefore directed the VA examiner to address these seemingly contradictory findings. However, the January 2020 VA examiner merely quoted the same article, “Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine 2006” referenced in the April 2018 examination report to support his finding that the Veteran had normal hearing at separation, which does not take into consideration that he had some degree of hearing loss upon separation. In addition, the January 2020 VA examiner’s rationale does not, as directed by the August 2019 Board remand, explain the contradictory findings of the April 2018 VA examination. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268 (1998). As the prior remand order was not complied with, even to what could be considered acceptable substantial compliance, and in accordance with Stegall, the Board finds that supplemental medical comment is required prior to adjudicating this claim. 2. Entitlement to service connection for tinnitus also is remanded. When this claim was previously before the Board in August 2019, the Board denied it, finding that the Veteran’s tinnitus was not shown to be causally or etiologically related to any disease, injury, or incident during his service and did not manifest within one year of his separation from service to, in turn, warrant presuming it was incurred during his service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. In response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). And, in August 2020, the CAVC vacated the Board’s August 2019 decision denying this claim pursuant to agreement in a Joint Motion for Partial Remand (JMPR), which agreed the Board had violated its duty to assist when it had relied on an inadequate April 2018 VA medical opinion in making its determination. Specifically, the examiner’s rationale – that the Veteran’s tinnitus symptoms were too far long removed from the military – is in contravention of the holding in Nieves-Rodriguez v. Peake because there is no supporting data or medical explanation. 22 Vet. App. 295, 301 (2008). The medical opinion offered no supporting data or medical explanation concerning whether the Veteran’s tinnitus is a symptom associated with his hearing loss. In addition, the April 2018 medical opinion did not address whether the Veteran’s tinnitus is secondary to – meaning caused or aggravated by – his bilateral hearing loss. As such, to comply with the terms of the JMPR, the Board, in turn, is remanding this claim back to the agency of original jurisdiction (AOJ) to afford the Veteran another VA examination for additional medical comment regarding the etiology of his tinnitus. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain a supplemental (addendum) medical opinion from a qualified clinician concerning the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to these claims. Based on a review of the results of the Veteran’s prior hearing evaluations, his lay statements regarding the development and treatment of his disabilities, and a thorough review of the claims file, including a complete copy of this remand, the examiner should answer the following question:: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently- diagnosed bilateral hearing loss disability began during his service, or, if sensorineural in nature, within a year of his discharge from service, or is otherwise related to or the result of noise exposure and consequent injury (acoustic trauma) during his service? The Veteran has confirmed acoustic trauma during his military service. In making this determination, the examiner should also address the apparent inconsistencies in the Institute of Medicine (IOM) report Noise and Military Service: Implications for Hearing Loss and Tinnitus, relied upon by the April 2018 audiologist for the premise “that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be casually related to that noise exposure if hearing was normal immediately after the exposure.” As discussed in this remand, the Veteran had some degree of hearing loss upon separation from service (or at least greater hearing threshold losses when separating from service than he did when entering service) and so the premise does not apply here. That same 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” (Institute of Medicine 2006, p. 11, BOX ES-1). See McCray v. Wilkie, No. 17-1875, 2019 U.S. App. Vet. Claims LEXIS 1015 (Vet. App. June 18, 2019). Thus, there must be reconciliation of those studies and opinions with the evidence presented here. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s tinnitus was caused OR is aggravated by his bilateral hearing loss? *The prior April 2018 VA compensation examiner only addressed causation, not also aggravation, and as explained opinions are required concerning both possibilities. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of tinnitus by the Veteran’s bilateral hearing loss. (c.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently-diagnosed tinnitus began during his service, or within a year of his discharge, or is otherwise related to or the result of noise exposure and consequent injury (acoustic trauma) during his service? If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner’s discretion. The mere absence of evidence of treatment for a hearing loss disability and/or tinnitus in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, nor if he did not meet the requirements for a ratable disability during service, including at time of separation (i.e., he only needs to currently satisfy the requirements of 38 C.F.R. § 3.385, not also have while he was in service). If, as the prior VA compensation examiner concluded, there is no such thing as “delayed-onset” hearing loss as indicated by the American College of Occupational Medicine Noise and Hearing Conservation Committee, then this supplemental examiner must provide more explanation for this conclusion, including, as an example, specifying what extent of change in threshold levels in service would be considered significant. The examiner is also advised that the Veteran is competent to report noise exposure and hearing problems in service, his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide reason for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.