Citation Nr: 21069215 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-35 913 DATE: November 17, 2021 REMANDED Entitlement to service-connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from December 1988 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO) denying service connection for the Veteran's claimed bilateral hearing loss disability. The Veteran testified before the undersigned Veterans' Law Judge at a Board hearing in February 2021.This matter was previously before the Board in June 2021, where it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Unfortunately, the Board finds that another remand is necessary in this case. In the Board's June 2021 remand, the AOJ was directed to obtain a new VA medical opinion regarding the etiology of the Veteran's current bilateral hearing loss condition. The Board specifically noted that this new opinion should include consideration of the Veteran's contentions regarding the incurrence of his hearing loss, made at his February 2021 Board hearing. The Veteran testified that he did not have any hearing protection while serving on aircraft runways, and was given inadequate hearing protection while doing shooting qualifications. He further testified that any time he was exposed to loud noise after service, he always wore hearing protection. In the subsequent July 2021 VA medical opinion, the examiner opined that the Veteran's current bilateral hearing loss condition is less likely than not related to his service. However, the rationale proffered by the examiner is inadequate for adjudicative purposes. As to the left ear, the examiner stated that "hearing loss from hazardous noise does not have a delayed onset," and concluded that "[d]ue to the fact that the veteran had hearing within normal limits from enlistment to separation, and his thresholds remained stable with no changes, veteran's hearing loss is less likely than not due to hazardous noise exposure." This rationale does not indicate that the examiner considered the Veteran's testimony regarding the incurrence of his condition. As such, the opinion is not in substantial compliance with the Board's remand directives, warranting another remand to the AOJ for a new opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the examiner did not cite to any medical treatise or other competent evidence to demonstrate that hearing loss from hazardous noise does not have a delayed onset. This is particularly problematic given that applicable caselaw does not require that hearing loss manifest in service in order for entitlement to service connection for hearing loss to be established. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Finally, although the examiner stated that they reviewed the evidence contained in Veteran's claims file, the examiner did not address the contention made by the Veteran's private medical provider, in March 2015 and again in November 2015, that the configuration of the Veteran's hearing loss is indicative of hazardous noise exposure a finding in direct contradiction to that made in the examiner's July 2021 opinion. As to the right ear which was explicitly documented as afflicted with hearing loss at 4000 Hz on the Veteran's January 1992 separation medical examination the examiner proffered a different opinion. They noted that the "Veteran's separation exam shows a mild hearing loss at 4000 Hz only. [The] Veteran's medical records are silent for complaints of hearing loss or ear trouble." On this basis, it was concluded that "because the Veteran's hearing remained mostly unchanged," the Veteran's right ear hearing loss was less likely than not related to service. However, the Board would like to highlight key distinctions in the rationale offered between the ears: for the left ear, the fact that there was no threshold shift was deemed determinative of the lack of a nexus between hearing loss and service. However, as to the right ear, discussion of a threshold shift is completely excluded and the conceded changes in hearing are deemed insignificant without further explanation. The discussion then shifts to the absence of complaints of hearing loss in service. Essentially, it appears that the examiner considered different factors in each rationale as to what is determinative for a nexus, such that a denial could be given for both ears but on different bases. No reasoning was provided for the inconsistency between opinions. In addition, the examiner similarly did not show an apparent consideration of the Veteran's February 2021 testimony and did not address the 2015 statements made by the Veteran's private medical provider. Due to the lack of consideration of the Veteran's hearing testimony, the inconsistency in bases for denial between the left and right ears, and the failure to address the contentions made by the Veteran's private medical provider, the Board finds that another remand is necessary in this matter. The matters are REMANDED for the following action: Request a new medical opinion addressing the etiology of the Veteran's bilateral hearing loss condition, preferably with an examiner who has not previously examined him. If a new VA medical examination is deemed necessary by the examiner, schedule the Veteran for a new examination. The examiner is asked to provide a response to the following: Is the Veteran's left and/or right ear hearing loss condition at least as likely as not (50 percent or greater probability) related to service? The examiner is advised that they should address the March 2015 and November 2015 statements made by the Veteran's private medical provider that the configuration of his hearing loss is indicative of hearing loss due to hazardous noise exposure. The examiner is advised that their opinion should address the Veteran's right ear hearing loss at 4000 Hz, documented in his January 1992 separation examination. The examiner should specifically discuss whether the hearing loss noted at that frequency constitutes a threshold shift. The examiner is advised the Veteran is competent to report his symptoms and history, including but not limited to the Veteran's February 2021 hearing testimony regarding the use of hearing protection during versus after service. Such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.