Citation Nr: 21068099 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-31 793A DATE: November 9, 2021 REMANDED The claim for service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1976 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in November 2013 by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. This appeal was previously before the Board in August 2018, February 2021, and May 2021. In the Board's May 2021 Remand Order, it instructed the VA Regional Office to obtain an opinion addressing the etiology of the Veteran's bilateral hearing loss. The examiner was requested to address the Veteran's conceded in-service noise exposure in relation to his pre-existing bilateral hearing loss, to include an opinion addressing the presumption of aggravation. The VA Regional Office obtained an initial opinion from a June 2021 VA-contracted examiner who offered a positive nexus opinion as to direct service connection and aggravation. But the VA Regional requested an addendum opinion based on the examiner's apparent misunderstanding of the Veteran's January 1985 audiologic examination, which the examiner did not know was five months before the Veteran's separation from service. The examiner assumed there was no separation examination. The VA Regional Office informed her that the January 1985 examination served as the final examination prior to the Veteran's separation from service. Based on this information, the examiner authored an addendum opinion in September 2021 in which she opined, "In light of this new clarification, and the lack of significant [audio threshold] change from entrance exam 8/2/76, to exam on 1/15/85 the claimed hearing loss, which clearly and unmistakably existed prior to service, was clearly and unmistakably NOT aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner based her conclusion on finding of a 5 to 10 decibel shift between the Veteran's entrance examination, which indicated hearing loss in the right ear at 3000-6000 Hertz and in the left ear 4000-6000 Hertz, and his January 1985 audiologic examination. According to the examiner, this did not indicate a "significant shift" in hearing. And she stated that the Veteran's interim exams in 1977, 1980, and 1984 did not show permanent change in hearing, only subtle fluctuations. The Board finds the rationale offered by the examiner is not sufficient. First, the examiner did not explain how or why she determined a 5 to 10 decibel shift was not significant, such that it did not constitute aggravation/worsening since the entrance examination. There is no basis in the record for the Board to evaluate her determination; it is just a statement. Notably, the Veteran's hearing loss pre-existed service, so any negative shift would theoretically constitute aggravation. Yet, the examiner seemingly suggests a 5 to 10 decibel shift is not significant, and thus not considered aggravation. Second, the examiner has not explained why "subtle fluctuations" in the Veteran's 1977, 1980, and 1984 audiologic examinations did not constitute permanent changes. Again, these are just conclusory statements. Consequently, the Board cannot determine the probative of the examiner's opinion due to these deficiencies. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Remand is required for clarification from the examiner. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the June 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology, to include worsening, of the Veteran's bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. In rending the requested opinions that follow, the examiner is informed that in-service noise exposure has been conceded; thus, there has been an in-service injury for purposes of the claim. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) the Veteran's bilateral hearing loss, which pre-existed his military service, permanently worsened during active military service to any degree? For this particular opinion, the examiner is informed that it is not necessary that the Veteran's service caused the worsening, only that permanent worsening occurred in service. Please explain your conclusion. (b.) If the Veteran's pre-existing hearing loss DID permanently worsen during active military service, whether it is clear and unmistakable (obvious or manifest) that such worsening was due to the natural progress of the condition? Please explain your conclusion. In rending his or her opinion, the examiner is asked to address the following, in addition to any other relevant evidence: (a.) The August 1977, February 1980, May 1984, July 1984, and January 1985 audiograms of record, as well as the Veteran's January 1985 final audiologic examination. (b.) The significance, if any, of the July 1984 treatment note in which it was found that the Veteran had experienced high frequency hearing loss and was instructed to undergo further testing. The examiner should also discuss the difference between the audiology results in earlier exams, compared to those from August 1984 which showed some threshold shifts of 10-15 decibels. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset (including aggravation) of his hearing loss, including any evidence concerning continuity of symptomatology, as he is legally permitted to report this symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of worsening hearing loss in service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.