Citation Nr: 21068949 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-05 927 DATE: November 17, 2021 REMANDED Entitlement to service connection for right ear hearing loss disability is remanded. Entitlement to a compensable rating for left ear hearing loss disability prior to July 23, 2021, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1954 to May 1958. Thereafter, he served in the Army National Guard of Virginia. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. In May 2019 and August 2020 and February 2021, the Board remanded the Veteran's claims. During the pendency of the appeal, an August 2021 rating decision granted an increase to 10 percent for left ear hearing loss effective July 23, 2021. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for right ear hearing loss. The Veteran contends that he has right ear hearing loss due to noise exposure in service. Specifically, he contends that he worked within 100 feet of the flight lines, and was exposed to noise from engines running at all times as well as artillery noise. See Statement in Support of Claim (September 2014); Hearing Transcript (January 2019). He stated that he cannot understand people, including via telephone, and cannot hear anything without hearing aids. See Correspondence (September 2020). The Veteran's representative has more recently asserted that his right ear hearing loss was also impacted by the service-connected left ear hearing loss that would logically cause a degree of loss in the right ear as it accommodated for the left ear hearing loss. See Appellate Brief (October 2021). In its August 2020 and February 2021 remands, the Board requested medical opinions addressing the etiology of the Veteran's right ear hearing loss disability first documented years after his service discharge. Since there has not been substantial compliance with the Board's remand instructions, remand is again necessary. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 3.159(c). As an initial matter, the Board notes that a right ear hearing loss disability as defined at 38 C.F.R. § 3.385 is shown and in-service noise exposure has been conceded. The Board also notes that impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies 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. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). By way of background, service treatment records (STRs) reflect that, on service entry, in 1954, audiometric findings were not recorded. Rather, the examination report shows whisper voice findings of 15/15 for each ear. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Afterwards, audiometric results standards were set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, audiometric results dated prior to November 1967, such as the Veteran's service enlistment examination, must be converted from ASA units to ISO units for proper comparison between the Veteran's enlistment and separation test results. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 at 500 Hertz (Hz), 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz and 5 at 4000 Hz. The Veteran's March 1958 service separation examination reflects, for the right ear, the following audiometric findings in decibels (shown both prior to and after conversion to ISO standard). [March 1958] HERTZ 500 1000 2000 3000 4000 ASA 10 15 0 10 10 ISO 25 25 10 20 15 Following the Veteran's active duty, he served in the Army National Guard of Virginia. Associated STRs reflect the following findings in decibels for the right ear: HERTZ 500 1000 2000 3000 4000 1986 20 20 20 20 20 1989 25 25 15 25 25 A hearing loss disability of the right ear as defined by VA at 38 C.F.R. § 3.385 is not shown at service separation. However, the threshold for normal hearing is from 0 to 20 decibels and the Veteran's 1958 service separation examination reflects a 25-decibel loss at both the 500 and 1000 Hertz frequencies. See Hensley v. Brown, 5 Vet. App. 155, 159 (The Court has established that the threshold for normal hearing is from 0 to 20 decibels). In its latest remand in February 2021, the Board found the November 2020 VA medical addendum opinion was inadequate. One of the reasons was that the November 2020 medical opinion was predicated on an inaccurate factual premise that the Veteran had normal hearing acuity at service separation, when, in fact, the Veteran's separation audiogram revealed that the right ear hearing was not normal at the 500 and 1000 Hertz frequencies. The Board also requested an opinion specifically from an otolaryngologist. See BVA Decision (February 2021). Although multiple medical examinations and opinions have been obtained, all are inadequate as they do not fully answer the Board's question. First, the Board finds that the VA medical opinions obtained in April 2021 and July 2021 are inadequate and cannot be used for adjudication purposes because they were not obtained from an otolaryngologist as directed in the Board's prior remand. Instead, they were obtained from a medical professional, including an audiologist. See Stegall, supra. Second, the April 2021 and July 2021 opinions provide conflicting findings, including a medical opinion that, "it is at least as likely as not that the claimant's hearing loss is related to events in service." See C&P Exam (July 2021). It is not clear whether the opinion pertains to the right ear or left ear. Additionally, another VA medical opinion from the same examiner dated the same day provides that it is not at least as likely as not that the Veteran's right ear hearing loss was caused by or a result of an event in service. See C&P Exam (July 2021). The discrepancies between these findings render these opinions inadequate. Third, the Board finds multiple opinions from an otolaryngologist to be inadequate as, despite the Board's previous instructions that the Veteran's separation audiogram revealed the right ear hearing was not normal at the 500 and 1000 Hertz frequencies, the opinions do not address these abnormal hearing findings at separation. See Stegall, supra. Instead, the examiner provides a negative opinion based on the finding that, "a timeline of at least 31 years without hearing loss after the service. As such, it is less likely than not that the hearing loss in the right ear he currently has is related to military service or a delayed onset hearing loss." The opinion evidently does not account for audiometric findings outside of normal range of hearing even if not equivalent to hearing loss for VA purposes. Moreover, as with prior VA examinations, the medical opinion is predicated on an inaccurate factual premise that hearing loss is first documented in March 1996, which is contradicted by the Veteran's treatment records. A November 1995 VA examination report shows right ear sloping to mild sensorineural hearing loss at the 3000 and 4000 Hertz frequencies. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The August 2021 VA medical opinion makes no mention of that finding of sloping hearing loss. Further, the medical opinion attributes the Veteran's hearing loss to his occupation as a bus driver subsequent to service without providing any clear explanation as to why this is more likely the cause of his condition. See C&P Exam (August 2021). It is not clear how many years the Veteran spent working as a bus driver, because prior examinations indicated that he worked in a glass company, and why this exposure is more dispositive of the condition's etiology. Similarly, despite the Board remand instructions to identify and explain any literature relied upon in reaching the conclusion, the medical opinion merely refers to the "accepted position regarding noise exposure and hearing loss," without referencing any specific authority. See C&P Exam (August 2021). See Stegall, supra; see also Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (in cases involving herbicide exposure and cancer, examiner's rationale may not be based solely on general medical articles); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). As detailed above, the August 2021 VA medical opinions are inadequate because the clinician did not provide a reasoned rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with analysis that the Board can consider and weigh against contrary opinions."). It is noted that a medical opinion or "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. 2. Entitlement to a compensable rating for left ear hearing loss disability prior to July 23, 2021, and in excess of 10 percent thereafter. The claim for entitlement to an increased rating for left ear hearing loss is inextricably intertwined with the claim for entitlement to service connection for right ear hearing loss currently on appeal. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a remand for further consideration of entitlement to an increased rating for left ear hearing loss is also warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an otolaryngologist as to the nature and etiology of the Veteran's right ear hearing loss disability. The claims file along with a copy of this REMAND should be reviewed. The otolaryngologist should opine on the following: (a.) Whether the Veteran's right ear hearing loss disability at least as likely as not had its onset in service; or (b.) Whether it is at least as likely as not that hearing loss disability manifested within one year after discharge from service; or (c.) Whether it is at least as likely as not that it was noted during service with continuity of the same symptomatology since service; or (d.) Whether it is at least as likely as not that any delayed onset hearing (hearing loss not shown in service or within one year after discharge) is otherwise etiologically related to in-service noise exposure. (e.) Whether it is at least as likely as not that any right ear hearing loss is (i) proximately due to service-connected left ear hearing loss, or (ii) aggravated beyond its natural progression by service-connected left ear hearing loss. The medical opinion should, at a minimum: (f.) Reflect consideration of (i) the documented history (sloping hearing loss in the right ear noted at the November 1995 VA examination); (ii) the lay contentions (e.g. hearing loss was caused by in-service noise exposure); and (iii) relevant medical evidence of record. (g.) Identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). With respect to any IOM report considered and relied upon in formatting an opinion, discuss any qualifying or contradictory aspects and why, if so, the opinion remains negative given the qualifying or contradictory aspects of the research/literature. (h.) To the extent an etiology other than noise exposure during active duty from September 1954 to May 1958 it more likely the cause of the Veteran's right ear hearing loss disability, fully explain why this is the more likely cause. NOTE (1): An adequate opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate opinion may not be predicated solely on general medical literature without discussing the specific facts pertaining to the Veteran. 2. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.