Citation Nr: 21064030 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-39 521 DATE: October 18, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran does not have hearing loss in the left ear for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.38. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019 when it was remanded for further development. Service Connection Entitlement to service connection for left ear hearing loss. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's DD Form 214 shows that his military occupational specialty was rifleman. In this case, the Board acknowledges that the Veteran was exposed to acoustic trauma during active service. 38 U.S.C. § 1154(a). The post-service medical evidence includes July 2014 and October 2019 VA audiology examination reports that found puretone thresholds, in decibels, as follows: July 2014 VA audiology examination: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 15 25 15 October 2019 VA audiology examination: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 15 20 15 Speech audiometry revealed left ear speech recognition ability of 100 and 96 percent in the July 2014 and October 2019 VA audiology examinations, respectively. Based on the Board's review of the evidence, service connection for left ear hearing loss is not warranted. Here, the July 2014 VA audiology examiner provided a diagnosis of normal left ear hearing. The Board acknowledges that the October 2019 VA audiology examiner diagnosed sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies; however, the Veteran's puretone thresholds between 500 and 4000 Hz are within the normal range and the examination results from July 2014 and October 2019 do not reflect a current left ear hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. See, e.g., October 2019, VA examination (indicating puretone thresholds, in decibels, of 35 and 30 at 6000 and 8000 Hertz, respectively). Auditory thresholds were not 26 decibels or more in at least three of the frequencies between 500 and 4000 Hertz, and the speech recognition was 96 percent or better in the left ear. In this case, there are no other auditory findings sufficient to establish left ear hearing loss and the Veteran is not competent to show that he has a hearing loss disability pursuant to 38 C.F.R. § 3.385. Thus, notwithstanding the Veteran's assertions that he has current left ear hearing loss, the objective audiometric evidence that is available reflects that he does not have a current left ear hearing loss disability for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Service connection for left ear hearing loss therefore must be denied. REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded. In May 2019, the Board remanded this matter to provide the Veteran a VA examination to determine the nature and etiology of any right ear hearing loss. In the October 2019 VA audiological examination, the found normal hearing in the right ear but failed to address the July 2014 VA audiometry examination indicating speech recognition ability of 92 percent in the right ear. As such, the October 2019 examiner's opinion is not adequate for rating purposes because the Board specifically directed the examiner to do so. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the October 2019 VA examiner noted that on enlistment and separation the Veteran's hearing was within normal limits with no significant shifts. The examiner cited a study from the National Academy of Sciences Institute of Medicine (IOM), which stated there was no scientific basis on which to conclude that hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Finding the IOM study the definitive consensus in this matter, the examiner opined, to the extent that the Veteran did have right ear hearing loss, it was not at least as likely as not caused by or a result of his service. Given the above, and in light of a recent decision of the United States Court of Appeals for Veterans Claims (Court), the Board finds that remand is necessary. See McCray v. Wilkie, 31 Vet. App. 243 (2019). This recent Court decision highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. Specifically, the VA medical opinion 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." McCray, 31 Vet. App. 251. Any future opinion predicated on the IOM reports' findings regarding delayed onset hearing loss must address these inconsistencies. Id. at 259. As the October 2019 VA examination relied on this IOM study without addressing these inconsistencies, the Board finds the negative nexus opinion for the right ear to be inadequate and a remand for a new VA examination is necessary. The matter is REMANDED for the following action: 1. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the onset and etiology of any right ear hearing loss. The Veteran's claims file should be provided to and reviewed by the examiner. The examiner should address the following: (a.) Whether it is at least as likely as not that the Veteran had right ear hearing loss at any time during the period on appeal, namely since September 24, 2013. In so answering, the VA examiner must address the July 2014 VA audiometry examination indicating right ear speech recognition ability of 92 percent in accordance with the Maryland CNC test. See July 2014, VA examination. (b.) Whether it is at least as likely as not that any current right ear hearing loss during the period on appeal was caused by or related to service, to specifically include his conceded noise exposure while in service. In formulating a medical opinion, if relying to any extent upon the IOM study noted above, the examiner must (i) identify the medical text's qualifying or contradictory aspects; and (ii) explain why the examiner found the contradictory aspects or conclusion in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiology related to in-service noise exposure. A complete rationale is required. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.