Citation Nr: 21066795 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-02 677 DATE: November 2, 2021 REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1976 to July 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision. In February 2017, a videoconference hearing was held before the undersigned. [As explained in the September 2017 remand, the Veteran was notified that a transcript of the February 2017 hearing was unavailable (due to a recording equipment malfunction); he was offered the opportunity for another hearing before the Board, but did not respond. It is assumed (as noted in the notification letter) that he does not desire another hearing, and the Board proceeds based on the evidence of record.] In September 2017 and June 2020, the Board remanded the claims for additional development. 1. Entitlement to service connection for bilateral hearing loss The Veteran's primary theory of entitlement for the benefit sought is direct service connection. He asserts that his diagnosed bilateral hearing loss is related to noise exposure in service, specifically on a delayed-onset basis. In a March 2020 statement, he reported that he noticed hearing problems in both ears in his age-50's; he reported his belief that such is due to shooting a .50-caliber rifle in service. Notably, some exposure to hazardous levels of noise in service was conceded in the April 2020 Board decision (pertaining to tinnitus), as the Veteran earned an Expert Rifle badge and reported additional exposure to weapons-firing in service. In June 2020, the Board remanded this matter for an advisory medical opinion to ascertain the likely nature of the Veteran's diagnosed bilateral hearing loss. In August 2021, a VA (fee basis) audiologist reviewed the record and provided a negative nexus (to service) opinion. He noted that the Veteran had normal hearing acuity levels on service separation examination. He cited to the Institute of Medicine (IOM) 2005 study "Noise and Military Service: Implications for Hearing Loss and Tinnitus" and wrote, "No Longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of noise exposure. The Committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely." [He also cited to a 2018 medical article that found "insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued," which was "primarily based on" the IOM report.] He acknowledged that the Veteran's claims file "does not contain significant history for civilian occupational noise exposure," and explained that progressive hearing loss has numerous causes other than noise exposure, such as aging, genetics, environmental causes, and medical conditions. He ultimately concluded, "Given the normal hearing on exit, the research supporting no progression of hearing loss after noise cessation and numerous other causes (including noise exposure after service) a nexus is not established." The Board finds the opinion provided does not substantially comply with prior remand instructions and is inadequate for rating purposes for several reasons. First, it is internally inconsistent; the examiner acknowledged the record does not contain significant history for civilian occupational noise exposure, but concluded that numerous other causes, including noise exposure after service, are the likely etiology. Second, the examiner failed to identify the more likely etiology, as directed in the Board's June 2020 remand, beyond "numerous other causes (including noise exposure after service)." See Stegall v. West, 11 Vet. App. 268, 271 (1998). Such a conclusion is speculative. Finally, the opinion relies in substantial part on the IOM 2005 study "Noise and Military Service: Implications for Hearing Loss and Tinnitus." The CAVC recently held in McCray v. Wilkie, 31 Vet. App. 243 (2019) that when a medical opinion relies on a medical text with apparently qualifying or contradictory statements (such as the IOM report cited by the August 2021 provider), the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. Considering the foregoing, development for yet another (adequate) VA medical opinion is necessary. 2. Entitlement to a TDIU rating The Veteran reports that his hearing loss disability resulted in the loss of his job as a security guard. See July 2014 VA Form 21-8940. Furthermore, the possible award of service connection for a hearing loss disability could change the posture of his TDIU claim, as his sole service-connected disability is tinnitus, rated 10 percent. Accordingly, the claim seeking a TDIU rating is inextricably intertwined with the service connection claim being remanded, and appellate consideration of that matter must be deferred pending resolution of the remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Arrange for the Veteran's record to be returned to the August 2021 VA (fee basis) consulting audiologist for an addendum opinion regarding the likely etiology of the Veteran's bilateral hearing loss. [If that provider is unavailable or unable to provide the addendum opinions sought, arrange for the record to be forwarded to another audiologist for review and the opinions sought. If that occurs, and further examination of the Veteran is deemed necessary, such should be arranged.] The Veteran's entire record (to include this remand, the August 2021 medical opinion, and any newly received records) must be reviewed by the provider. The provider should provide opinions that respond to the following: (a) Identify the likely etiology of the Veteran's bilateral hearing loss disability. Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred or aggravated in service, to include as due to acknowledged exposure to noise trauma therein? The rationale for the opinion provided must: - Discuss any increase in puretone thresholds from entrance to separation, with some discussion (including citation to medical literature) regarding the extent of variation in puretone thresholds that is required for a puretone threshold shift to be considered significant; and, - If the examiner relies on the 2005 IOM report "Noise and Military Service: Implications for Hearing Loss and Tinnitus" (discussed above), explain how the qualifying and contradictory statements in that IOM report impact the examiner's ultimate conclusion as to whether the Veteran's hearing loss is related to service. (b) If the hearing loss is determined to be unrelated to service, identify the etiology that is considered more likely (and explain why that is so). The rationale for this opinion must identify the most likely etiology, and cannot simply identify "numerous other causes" as the likely etiology. All opinions must include a complete explanation of rationale, with citation to supporting factual data and medical principles. All directives above must have a response. 2. Review the record and readjudicate the claim for a TDIU rating considering the additional development on the claim of service connection for hearing loss. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.