Citation Nr: 21062343 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-04 905A DATE: October 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in August 2014 and a statement of the case (SOC) was issued in November 2016. The Veteran perfected a timely appeal in January 2017. In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's VA claims file. In January 2020 and June 2021, the Board remanded the appeal for further evidentiary development. A supplemental statement of the case (SSOC) was most recently issued in July 2021. The Veteran's appeal is now returned to the Board for further appellate proceedings. 1. Entitlement to service connection for bilateral hearing loss is remanded. Regrettably, additional remand is necessary for further evidentiary development of the Veteran's appeal. The Board is cognizant that the Veteran's case has been in adjudicative status for years and that it has already been remanded twice in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending claim. The June 2021 Board decision remanded the appeal to obtain a VA examination with medical opinion as to question of direct service connection. Specifically, the examiner was instructed to provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran's current hearing loss was incurred in service, was manifest to a compensable degree within one year of separation, or is otherwise causally related to his active service or any incident therein. The clinician was informed that in-service noise exposure has been conceded. In providing the requested opinion and rationale, the examiner was instructed to specifically consider (a) the Veteran's service treatment records to include the March 1969 audiogram and November 1969 whispered voice test; (b) the Veteran's description of his in-service noise exposure; (b) the Veteran's description of his decreased hearing acuity in service and thereafter; (c) the October 2011 buddy statement from F.T.; (d) the results of post-service VA audiological testing including from 2007 to present; (e) the 2006 study by the Institute of Medicine, including any qualifiers or contradictions; and (f) the article "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss," The Journal of Neuroscience, 29(45) J. Neuroscience 14077, 14078-79 (2009). Pursuant to the June 2021 Board remand, separate VA medical opinions were obtained in July 2021, which addressed the right and left ear hearing loss. In both medical opinions, the examiner determined that the diagnosed right and left hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: "Veteran's pre-employment hearing screening performed at the Jesse Brown V.A. revealed normal hearing sensitivity for the [right and left ears] on 5-1-2007. This testing was completed 37 years after separation from military service. The Veteran's MOS of personnel and administration has a low probability of hazardous noise exposure." The examiner further stated, "[a]ccording to the consensus report from the Institute of Medicine, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus", released 9/22/05, based on the current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure." The examiner concluded, "[t]here was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure." Critically, the July 2021 VA examiner completely failed to address the Veteran's lay statements concerning his in-service noise exposure episodes and symptoms of decreased hearing acuity in service and thereafter, as directed by the June 2021 Board Remand. The examiner additionally failed to consider the October 2011 buddy statement from F.T.; the 2006 study by the Institute of Medicine, including any qualifiers or contradictions; and the article "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss," The Journal of Neuroscience, 29(45) J. Neuroscience 14077, 14078-79 (2009), pursuant to the instructions enumerated in the June 2021 Board Remand. Moreover, the July 2021 VA examiner failed to recognize that the Veteran's in-service noise exposure had previously been conceded by the Board, as noted in the June 2021 Board Remand. The Board therefore finds that the July 2021 VA examiner's opinion did not comply with the June 2021 Board Remand. The medical evidence currently of record is therefore inadequate to resolve the claim of entitlement to service connection for bilateral hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Crucially, the RO failed to ensure substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, this matter must be remanded to afford the Veteran a new medical opinion to address the claim on appeal. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. After obtaining any additional information and authorization necessary, undertake appropriate efforts to procure any records of outstanding private and VA treatment. All such available documents should be associated with the claims file. 2. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's bilateral hearing loss. The claims file must be made available to the clinician rendering the requested opinion. If the clinician determines that an examination is necessary, one should be scheduled. Following review of the claims file, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran's current hearing loss was incurred in service, was manifest to a compensable degree within one year of separation, or is otherwise causally related to his active service or any incident therein. The clinician is informed that in-service noise exposure has been conceded. In providing the requested opinion and rationale, the examiner MUST ADDRESS the relevant evidence of record, to include: (a) the Veteran's service treatment records, to include the March 1969 audiogram and November 1969 whispered voice test; (b) the Veteran's description of his in-service noise exposure; (b) the Veteran's description of his decreased hearing acuity in service and thereafter; (c) the October 2011 buddy statement from F.T.; (d) the results of post-service VA audiological testing, including from 2007 to the present; (e) the 2006 study by the Institute of Medicine, including any qualifiers or contradictions; and (f) the article "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss," The Journal of Neuroscience, 29(45) J. Neuroscience 14077, 14078-79 (2009). (Continued on the next page) If there is any medical reason to accept or reject the proposition that the Veteran's reported noise exposure and symptoms in service and thereafter represented the onset of his current hearing loss disability, this should be noted. Stated another way, do the Veteran's reports about his noise exposure and symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is also informed that the absence of in-service evidence of a hearing loss disability is not fatal to a claim of service connection for hearing loss. Rather, 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. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.