Citation Nr: 21065400 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-32 289A DATE: October 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1968 until his honorable discharge in December 1971. He received a combat action ribbon for his service. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Regional Office of the Department of Veterans Affairs (VA). The Veteran also filed a claim for tinnitus which was denied in the January 2016 rating decision. He did not timely file an appeal for that claim. He is encouraged to file a supplemental claim for entitlement to service connection should he believe he is entitled to benefits for tinnitus. In August 2019, the Board denied the Veteran's claim. Subsequently, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, however, the parties entered into a Joint Motion for Partial Remand (JMPR) in September 2020. Pursuant to the terms of the JMPR, the parties agreed that the December 2015 VA examination was inadequate. In March 2021, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain updated VA treatment records and a new VA examination, as well as to inform the Veteran that he could submit statements or buddy statements in support of his claim. The claim now returns to the Board for adjudication. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of the nature and etiology of the Veteran's bilateral hearing loss. For the reasons set forth below, additional development is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss. He asserts that he sustained acoustic trauma while serving in combat. However, his claim must be remanded as the examinations are inadequate and do not comply with the Board's prior remand. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The December 2015 VA examiner opined, "Cannot determine a medical opinion regarding the etiology of the Veteran's right ear hearing loss without resorting to speculation." The examiner explained, "Since there is a significant difference between ears, this asymmetry should be looked at further in regards to etiology." Yet there is no indication that any additional testing was conducted or that the "asymmetry" in Appellant's ears was further examined. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) ("once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided"). The JMPR found this to be inadequate. The March 2021 Board remand instructed the Regional Office to obtain a new VA examination addressing the asymmetry. The examiner failed to do so. The April 2021 VA examiner found that the Veteran's bilateral hearing loss was due to presbycusis and stated the following, "Cannot determine a medical opinion regarding the etiology of the Veteran's right ear hearing loss without resorting to speculation. Today's audiometric data is not pathognomonic of a natural progression of a noise induced hearing loss." These statements are contradictory and fail to adequately address the JMPR and Board remand. For the right ear, the Regional Office must ensure that the next examiner addresses the medical "asymmetry" in his ears and provides a rationale that allows for a fully-informed decision. For the left ear, the December 2015 VA examiner found that there was no evidence supporting delayed onset of hearing loss post service, basing the negative opinion on the "anatomical and physiological data available on the recovery process following noise exposure," but did not adequately address his specific noise exposure and recovery process. The Regional Office must ensure that the next examiner addresses his specific noise exposure combat operations, grenades, and helicopters and the recovery process. The post-remand examiners failed to do so. Furthermore, to the extent that the VA examiner relied upon a 2005 Institute of Medicine (IOM) report that was negatively addressed by the Court in McCray, upon remand the Board must ensure that a medical opinion is obtained that contains a rationale that is adequate for rating purposes. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) ("If the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not."). This recent Court decision highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. Specifically, the VA medical opinion in McCray 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 indicated 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. Therefore, a remand is also warranted for left ear hearing loss for an opinion that is adequate for rating purposes. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the onset and etiology of his bilateral hearing loss. The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral hearing loss was caused by or related to service, to specifically include noise exposure during combat in service. The following should be addressed: 2. Address whether his exposure to combat operations, grenades, and helicopters in service would have caused his bilateral hearing loss. The noise exposure and recovery process should be outlined by the examiner. 3. Discuss the asymmetry of the Veteran's hearing loss and provide a detailed rationale. 4. 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 noise exposure. 5. 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 bilateral hearing loss is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. 6. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.