Citation Nr: 21071020 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-34 916 DATE: November 29, 2021 REMANDED Service connection for right ear hearing loss. REASONS FOR REMAND The Veteran served in active during peacetime from June 1981 to June 1985. This case is on appeal from an August 2014 rating decision. Most recently, in an April 2021 decision, the Board remanded this claim for further development. Service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is related to service. In a September 2015 correspondence, the Veteran reported that he was placed on a medical hold during separation from service in 1985. In March 2021, the Veteran's representative referenced a fact sheet from the National Institute on Deafness and Other Communication Disorders covering exposure to impulse or continuous loud noise and temporary hearing loss which disappears 16 to 48 hours later. Further, the representative stated that recent research suggests that temporary hearing loss may result in residual long-term damage to hearing. The Veteran's representative remarked that the Veteran experienced hearing loss in-service in the 1000 Hertz (Hz) range. In September 2021, the Veteran's representative contended that the August 2021 VA examiner failed to address several issues to include delayed hearing loss or shift during or after service; how improper ear protection used in service contributed to inner hearing loss, and the clinical significance of temporary noise contributing to significant hearing loss in service. The Veteran's service personnel records (SPRs) show that he served as a Communications Center Operator and received the M-16 Rifle Expert Badge. His service treatment records (STRs) contain an August 1980 entrance audiogram that show a 50 decibel (dB) threshold at 4000 Hz for the right ear, and the rest of the thresholds were within normal limits. The Veteran's May 1985 separation examination shows a 30 dB threshold for 4000 Hz. Furthermore, during the May 1985 medical examination, the Veteran was seen for main complaint of tinnitus, occurring for one week in the right ear. He denied any trauma or loud noises. It is also notable that the Veteran entered service on an H2 profile. A numerical designation of "2" "indicates that an individual possesses some medical condition or physical defect which may impose some limitations on classification and assignment." See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993). As right ear hearing loss was noted on entry into service, the service aggravation provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. The Veteran's post-treatment VA records show that in April 2005 the Veteran reported military noise exposure as a "forward observer" on a helicopter. He also reported occupational noise exposure as a police officer for which he used hearing protection at the firing range. In a February 2014 treatment record, it was noted that the Veteran had a "history of hearing difficult since time in the marines." In August 2014, the Veteran was afforded a VA examination with regard this claim. The Veteran reported that he requires to see people speaking to understand them. The audiologist diagnosed the Veteran with right ear hearing loss that is less likely than not due to military noise exposure. She found no evidence of auditory threshold shifts in the right ear between the Veteran's enlistment examination and separation examination, which showed normal hearing levels. The audiologist reported that the Veteran's enlistment audiogram shows hearing loss at 4000 Hz to 6000 Hz and that these thresholds improved on the separation audiogram in May 1985. The audiologist opined that no "significant changes" in hearing sensitivity occurred, when comparing the Veteran's enlistment audiogram to the separation audiogram. Further she concluded that there was no evidence the Veteran's preexisting right ear hearing loss was permanently aggravated by your in-service noise exposure based on the separation audiogram which showed improvement. Pursuant to the March 2019 remand, in June 2020, a VA medical opinion was obtained. The Veteran reported that he was an M16 rifle expert, used the M203, .45 ACP; all as a right-handed shooter. He also reported noise exposure to include helicopter and artillery. Further, the Veteran reported being issued hearing protection during service. The Veteran denied noise exposure prior to entering service and vocationally as a civilian working in forensics. The audiologist found that the Veteran's right ear hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include hazardous noise exposure. He also found that the Veteran's hearing loss existed prior to service and was not aggravated by his period of service. The audiologist found no significant threshold shifts during service and that the Veteran's hearing at separation improved relative to enlistment in his right ear and no noise injury. The audiologist referenced a 2006 Institute of Medicine (IOM) study that found "insufficient scientific basis given the current understanding of auditory physiology to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure." Also, the audiologist discussed the physics behind the "head shadow effect" as being "well understood and observed routinely with small arms users, whereby the ear on the same side as shoulder of weapon is 'shadowed' by the head and thus protected from the muzzle blast." The audiologist explained that a right-handed shooter's right ear would be expected to be protected by the head more than the left ear. Even though noise exposure is established, the audiologist concluded that pre-existing hearing loss in the right ear was not aggravated beyond natural disease progression within service. Pursuant to the April 2021 remand, the Veteran was afforded another VA examination in August 2021. The Veteran reported exposure to aircraft noise, small arms fire, weapons fire, artillery, and bombing. He reported having hearing protection but did not always use it. Also, he reported being a right and left hand shooter. Moreover, the Veteran reported experiencing occupational noise exposure post-service while working for John Deer and hunting with a shotgun, wearing hearing protection. He also reported recreational, social noise exposure pre-service to include hunting with his father who would shoot .22 caliber firearms. He explained that he did not shoot but his father did. His father had him put cotton in the ears. Further, the Veteran reported that his father wore hearing aids at an older age. The Veteran denied recreational, social exposure during service. He reported that he could not hear anything with the masks which causes tensions between him and his spouse. The audiologist opined it is less likely than not that the right ear 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 audiologist referenced the entrance and separation examinations for the right ear and found that the thresholds "improved infrequency to be consistent with separation examination on conservation exam" from January 1982. The audiologist concluded that the May 1985 separation examination did not meet the criteria for an aggravation of thresholds when entering service. Furthermore, the examiner found that the thresholds for the right ear improved for 4000 and 6000 Hz and remained within normal limits for the rest of the frequencies tested at separation in 1985. The audiologist noted that while the Veteran was exposed to hazardous levels of noise, no changes occurred to thresholds that would indicate acoustic trauma because the Veteran did not experience a permanent or temporary shift in the right ear while in service. The audiologist explained that without temporary or permanent shifts changes to threshold, acoustic injury does not occur. The Veteran's hearing loss existed when he entered service and did not change while in-service. The audiologist concluded that "while noise exposure has a cumulative effect on hearing over time, in the absence of changes while in the service, it is more likely recreational hunting and occupational work at John Deere that has led to the degree of hearing loss in the right ear." In the April 2021 decision, the Board found that there was no substantial compliance with prior Board remand directives because the examiners did not indicate if in-service noise exposure resulted in damage to the Veteran's auditory hair cells. However, the August 2021 examiner did not address this aspect of the claim. Thus, the Board finds that a remand is warranted to obtain an additional medical opinion. The claim is REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's preexisting right ear hearing loss. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner should address the following: (a.) Comment on the likelihood that the Veteran's in-service noise exposure resulted in damage to right ear auditory hair cells. (b.) State whether it is at least as likely as not that the pre-existing right ear hearing loss increased in severity during service beyond any temporary flare-up. Comment on how the level at 40dB would be lower at separation. (c.) If there was an increase, state whether it is undebatable from a medical perspective that any increase was due to the natural progress of the disease. In answering the above question, if the examiner relies on the IOM 2006 study, the examiner must explain how the qualifying and contradictory statements in the IOM report impact the examiner's ultimate conclusion as to whether the Veteran's hearing loss is related to service, to include "delayed onset hearing loss." A rationale should be given for all opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.