Citation Nr: 21071355 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-23 416 DATE: November 30, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had periods of active service first from May 1968 to December 1969, then from June 1977 to December 1983. This matter comes to the Board from an October 2015 rating decision denying the petition to reopen a previously denied claim for bilateral hearing loss. In February 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file By way of history, in July 2020, the Board reopened the hearing loss claim and remanded this matter to the RO for further development of records that might corroborate the Veteran's claims. Thereafter, in a June 2021 Board decision, the Board remanded the claim again, finding that the current opinions lacked rationale to support their conclusions. The Board also previously found the private opinion submitted by the Veteran to lack probative value due to its lack of rationale. As such, in the 2021 remand directives, the Board instructed the RO to obtain an adequate medical opinion regarding the etiology of the Veteran's bilateral hearing loss. As noted in the 2021 Board remand, the August 2020 and November 2020 addendum opinions have little probative value, as they appear to be largely based on a lack of in-service evidence of hearing loss. The Board specifically reminded that a lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. (emphasis added). Unfortunately, the resulting June 2021 opinion failed to include a sufficiently detailed rationale on the etiology of the Veteran's bilateral hearing loss. Instead, the VA examiner again simply noted that "my opinion stands" and reiterated her opinion, despite the remand clearly stating that her prior opinions are not adequate. The examiner continued to base her opinion on the Veteran's in-service and separation audiometric tests being normal. Specifically, the examiner stated: "although significant military noise exposure is conceded, hearing loss is less than likely due to noise in the service because there was no permanent or temporary significant decrease in hearing acuity while in the service" and that "it is well known that noise induced hearing loss does not have a delayed onset." The examiner therefore opined that the current hearing loss is less likely than not caused by or a result of military service. Further, the examiner rebutted the 2015 private opinion stating she did not believe it was a complete opinion since it did not include a review of the military medical records or include a hearing exam. However, the Board finds that the 2021 addendum opinion is insufficient upon which to decide the claim and is tainted by the same flaws which rendered the August and November 2020 VA opinions inadequate. First, the Board had specifically stated in the remand directions that the examiner should explain why the Veteran's hearing loss is unrelated to service despite being diagnosed after service, as a condition first diagnosed after service may still be otherwise related to service which was not done. Next, the Board notes that there is legal authority providing that normal audiometric results in separation examination alone are NOT an adequate basis for a negative audiological opinion. The Board reiterates that the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim, as the laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, contradictory to the examiner's opinion that "it is well known that noise induced hearing loss does not have a delayed onset", there is caselaw that specifically notes that evidence of a current hearing 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As of yet, no VA examiner has adequately addressed the Veteran's credible contention that his bilateral hearing disability is related to in-service noise exposure. Finally, the Board notes that audiology test results have not been associated with the claims files; therefore, those records must be requested. While the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. As such, the matter is remanded to obtain an adequate opinion and to ensure compliance with the Board's previous remand directives. The matters are REMANDED for the following action: 1. Update the claims file with the audiology reports conducted or requested by VA, to include any performed in February 2010; December 2014; and January 2015. 2. Forward the electronic claims file and a copy of this REMAND to a different VA examiner than the one who provided the opinion in 2020 and 2021 (E.S.). The examiner should provide an addendum opinion regarding the etiology of the Veteran's current bilateral hearing loss. Examination of the Veteran is not required, unless the VA examiner, within his or her discretion, determines another in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, to include this remand and acknowledgement as to why the prior opinions are note adequate, the examiner is asked to provide an opinion as to whether: it is at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hearing loss is caused by or otherwise etiologically related to his active service, to include conceded in-service noise exposure. In rendering this opinion, the examiner is requested to review and discuss: the Veteran's MOS was a power generator mechanic and cannon crewman; he also served as an artillery gunner; and testified he was around 10K generators, diesel trucks, and constant noise for almost four years with no proper protection; He is currently service connected for tinnitus; STRs showed normal hearing acuity throughout his service, though his sworn testimony included that he stated he went to the doctor following a howitzer incident; He testified that he attempted to file for hearing loss in the mid-80s, but was told his service records could not be obtained; December 2009 VA medical records noted he had hearing loss with intermittent ringing in his ears; 2010 medical records noted that he was exposed to recurrent loud noises while in the military; His medical records between 2009 and 2015 all mention and note his bilateral hearing loss, to include in October 2014, he reported more hearing loss changes; March 2015 medical opinion, in which a VA primary care doctor opined that the Veteran's bilateral hearing loss was at least as likely as not associated with his loud noise exposure in-service; His sworn testimony that he has had no severe noise exposure post-service and worked as a state correctional officer. The Board again reminds the examiner that the Veteran's noise exposure during service has been conceded, and legal authority providing that normal audiometric results in separation examination alone are NOT adequate basis for negative audiological opinion. Specifically, the examiner is cautioned against focusing an opinion solely on the evidence showing the Veteran experienced normal hearing during separation audiometer testing; and she or he must explain whether hearing loss can be related to service despite delayed manifestation. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and whether any further tests, evidence, or information is needed to render an opinion. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.