Citation Nr: 21072271 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-19 379 DATE: December 2, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A May 2021 Board decision denied, in pertinent part, the claim on appeal. The Veteran subsequently appealed the Board's May 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted the parties' Joint Motion for Remand (JMR), which vacated the Board's May 2021 decision and remanded the appeal. The case has now been returned to the Board for further appellate action. The Board finds that additional development is required before the claim on appeal is decided. In a February 2018 VA medical opinion, the examiner opined that the Veteran's diagnosed bilateral hearing loss was less likely than not caused by or a result of an in-service event. In reaching this conclusion, the examiner did not consider delayed onset hearing loss. In the August 2021 JMR, the parties agreed that the Board did not properly consider whether the Veteran is entitled to service connection or hearing loss due to delayed onset hearing loss. The Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As the opinions are not adequate, they cannot serve as the basis of denials of entitlement to service connection. Therefore, the Board finds that a remand is necessary to obtain an adequate medical opinion is warranted regarding the nature and etiology of the Veteran's bilateral hearing loss. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an audiologist, or other qualified medical examiner, to determine the nature and etiology of the Veteran's bilateral hearing loss. The need for an audiological examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's bilateral hearing loss had its onset during his active service, or is otherwise etiologically related to such service, to include whether any injury due to loud noise exposure experienced therein contributed to his bilateral hearing loss. The examiner must specifically address the Veteran's contention that his hearing loss had a delayed onset following service. The examiner must consider the Veteran's statements regarding the onset and continuity of his symptoms. The examiner should also address the study by Kujawa & Liberman cited in his representative's brief, which addresses delayed onset hearing loss. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.