Citation Nr: 21070466 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-15 896A DATE: November 24, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the proceeding is of record. The Board remanded the case for further development in December 2017 and May 2020. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed before adjudication of the issues on appeal. Following the May 2020 remand, an additional VA medical opinion was obtained in July 2020 regarding the Veteran's bilateral hearing loss. The examiner opined that disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that the Veteran's military occupational specialty was power generator equipment repairman. The examiner also observed that the October 1968 entrance examination and April 1971 separation examination showed bilateral hearing within normal limits and found that there were no shifts in service. Therefore, she concluded that there is no evidence of a noise injury despite the Veteran's statements. In so finding, the examiner cited to the 2006 Institute of Medicine (IOM) study, which found that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Therefore, based on objective evidence (the audiograms at enlistment and separation), the examiner stated that it is less likely as not that the Veteran's current hearing loss is due to or a result of in-service noise exposure. Nevertheless, in a June 2021 written brief, the Veteran's representative asserted that prior auditory damage can aggravate and/or accelerate hearing loss as a veteran ages. He cited to an article published in the Journal of Neuroscience in May 2015 in support of the argument. The July 2020 VA examiner did not have the opportunity to consider such argument or evidence. See also McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (the Board has an obligation to address contradictory or qualifying aspects of the IOM report when the issue is expressly raised by the veteran or reasonably raised from review of the evidence of record.). In addition, in rendering her opinion, the July 2020 VA examiner did not indicate whether she converted any audiometric results using American Standards Association (ASA) standards to International Standards Organization-American National Standards Institute (ISO-ANSI) standards to facilitate data comparison, as directed in the prior remand. The Board notes that the Veteran was provided an enlistment examination in October 1968 and a separation examination in April 1971. In March 2017, the Board revised its policy regarding service connection claims for hearing loss for Vietnam-era veterans. When interpreting audiometric data from service treatment records, the Board has historically considered that service departments changed from using ASA standards to ISO-ANSI standards as of November 1967. The revised policy provides that, for service department audiograms conducted between January 1, 1967 and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards. For these reasons, the Board finds that an additional VA medical opinion is needed to determine the etiology of the Veteran's bilateral hearing loss. In addition, the Board notes that, in May 2021, after the March 2021 supplemental statement of the case (SSOC) was issued, the Veteran was afforded a VA examination in connection with claim for service connection for a low back disorder. This new evidence was not considered by the agency of original jurisdiction (AOJ). In September 2021, the Board sent a letter to the Veteran and his representative notifying them that the additional evidence had been received. In October 2021, the Veteran responded that he wanted the case remanded to the AOJ for review of the additional evidence. Thus, the Board finds that the AOJ should consider the additional evidence in the first instance and issue a SSOC if the benefit remains denied. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran and his representative submit any medical treatises or evidence indicating that delayed onset hearing loss is possible. See June 2021 appellate brief. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a clarifying opinion as to the etiology of the Veteran's bilateral hearing loss. An additional physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute post-service findings to an injury in service. The examiner should opine as to whether it is at least as likely as not that the Veteran's bilateral hearing loss is causally or etiologically related to his military service, to include any noise exposure therein. The examiner should consider the Veteran's March 2017 hearing testimony, including his statements that his hearing loss resulted from noise exposure in service. He or she should also note that the Veteran has denied any significant occupational or recreational noise exposure after service. The examiner should specifically address the assertion made by the Veteran's representative in the June 2021 written brief that there are medical treatises that reveal that delayed onset hearing loss is possible. The examiner should also explain the significance, if any, of any threshold shift or lack thereof in service. In making this determination, he or she should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison. (The Board has historically considered that service departments changed ASA standards to ISO-ANSI standards as of November 1967. The revised policy provides that, for service department audiograms conducted between January 1, 1967 and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards). The examiner should further discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should note that the July 2020 VA examiner cited to a 2006 IOM report on hearing loss for the conclusion that there is an insufficient scientific basis to find that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. However, the IOM report also states that "there is no sufficient evidence from longitudinal studies to determine whether permanent noise-inducted hearing loss can develop much later in one's lifetime, long after cessation of that noise exposure and that definitive studies to address this issue had not been performed." (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. 5. Thereafter, the AOJ should consider all of the evidence of record, including any evidence received since the March 2021 SSOC, and readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.