Citation Nr: 21071213 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-59 187 DATE: November 30, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1975 to February 1978 and had service in the Army National Guard from March 1988 to January 2013 with a period of active duty for training (ACDUTRA) from May 1989 to August 1989 and active duty service from December 1990 to March 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) rating decision. In September 2019, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. In December 2019, the matter was remanded for additional development. [In September 2021, the Veteran was notified that the VLJ who presided over his Board hearing is no longer at the Board, and was offered a new hearing before a VLJ who would decide his appeal. He did not respond, and it is assumed that he does not desire another hearing.] [The December 2019 Board decision also remanded the issue of service connection for tinnitus. A January 2021 rating decision granted service connection for tinnitus, rated10 percent, effective January 30, 2015, resolving the appeal in the matter.] Entitlement to service connection for bilateral hearing loss. The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim of service connection for bilateral hearing loss. On December 2019 Disability Benefits Questionnaire (DBQ) examination, the audiologist opined that since the Veteran had the same hearing sensitivity with no significant threshold shifts in both ears in service and no evidence the military noise exposure caused a permanent noise injury (affecting hearing sensitivity), his current hearing loss disability is less likely than not due to events in his military service. The Board finds this opinion inadequate for rating purposes. It is well-established in caselaw that the fact that a hearing loss disability was not shown in service is not fatal to a claim of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In an August 2020 DBQ report, the December 2019 examiner stated: "In order for hearing loss to be a result of military noise exposure, the Veteran must show a significant threshold shift during the period of active duty service. A significant threshold shift would be a worsening of 20dB or greater at one frequency or a worsening of 15dB or greater at two frequencies in the same ear when comparing two exams during that active duty period." This "significant threshold shift in service" requirement suggests an improper legal standard (for Veterans to claim disability compensation). VA regulations do not require Veterans to prove conclusively that a significant threshold shift occurred in service. Additionally, in support of her negative nexus opinion (to service) the audiologist referred to an Institute of Medicine (IOM) (2006) study stating "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur"). Notably, there is a qualifying statement in the IOM study, indicating that the lack of delayed threshold shifts after noise exposure cannot be taken as evidence excluding that delayed effects may occur. Recently, in McCray v. Wilkie, 31 Vet. App. 243 (2019), the U.S. Court of Appeals for Veterans Claims (CAVC) has held that when a medical opinion relies on a medical text with apparently qualifying or contradictory statements (such as in the 2006 IOM report cited by the December 2019/August 2020 audiologist), the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. Here, the consulting audiologist is not shown to have considered that the phrase "it is unlikely that such delayed effects occur" does not exclude such possibility, that "lack of delayed threshold shifts after noise exposure cannot be taken as evidence that delayed effects do not occur." There was no discussion of why, considering the facts in this particular case, delayed onset of hearing loss is not at least as likely as not. Therefore, the opinion is inadequate for rating purposes. When VA undertakes to obtain a medical opinion, it must obtain one that is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a remand for an addendum fully adequate advisory medical opinion is necessary. In September 2021, the Veteran's representative submitted written argument, citing to "Aging After Noise Exposure: Acceleration of Cochlear Synaptopathy in "Recovered" Ears" (The Journal of Neuroscience, May 2015). As the article is unaccompanied by a medical professional's opinion applying the information therein to the specifics of the instant case, it is too generic to establish linkage between the Veteran's hearing loss and his exposure to noise in service. See Timberlake v. Gober, 14 Vet. App. 122, 130 (2000). A medical opinion (addressing how the study cited by the representative pertains to this Veteran) is necessary. The matter is REMANDED for the following: Arrange for the Veteran's claims file to be forwarded to an appropriate clinician (otologist or audiologist) other than the December 2019/August 2020 examiner/opinion-provider for review and an addendum opinion addressing the etiology of the Veteran's bilateral hearing loss disability. On review of the claims file, to specifically include the submitted study on "Aging After Noise Exposure: Acceleration of Cochlear Synaptopathy in "Recovered" Ears," cited by the Veteran's representative, the examiner should: (a.) Identify the likely etiology of the Veteran's bilateral hearing loss. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's exposure to noise in service? (b.) Noting that the qualifying statement in the IOM report (discussed above) does not exclude that delayed onset hearing loss may be possible (and considering the study cited by the Veteran's representative finding that "single synaptopathic exposure has effects on the aging ear that continue long after the noise has stopped.") explain how the facts in this particular case, impact on the ultimate conclusion regarding whether the Veteran's hearing loss is related to service. (c.) If the Veteran's current hearing loss disability is determined to not be etiologically related to his exposure to noise in service, identify the etiology for the hearing loss disability that is considered to be more likely (and explain why that is so). The consulting provider should note and acknowledge that the fact that service treatment records do not document a hearing loss disability or a significant puretone threshold shift is not fatal to the claim and cannot be the sole basis for rejecting a possible nexus to service. All opinions must include rationale that cites to supporting factual data in the record and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.