Citation Nr: 21073497 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-10 835 DATE: December 8, 2021 REMANDED Service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to February 1968 and February 1968 to October 1971. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board remanded the issue of service connection for bilateral hearing loss for a new VA examination. Following the January 2021 VA medical opinion linking the Veteran's left ear hearing loss to service, the RO granted service connection for the Veteran's left ear. However, the issue of service connection for the Veteran's right ear hearing loss remains on appeal. Service connection for the Veteran's right ear hearing loss is remanded. Although the Board again regrets the further delay, the Board finds that additional remand is required. Specifically, the January 2021 VA medical opinion is inadequate because the examiner cited the Institute of Medicine 2005 report (2005 IOM report) to support the negative nexus opinion for the right ear hearing loss, but did not address the report's internal inconsistencies. Here, the evidence of record includes the January 2021 VA medical opinion in which the January 2021 examiner opined was not related to service. In support of the negative nexus opinion, the examiner noted that was no permanent positive threshold shift greater than the normal measurement variability at any frequency between 500 and 6000 Hz in the Veteran's right ear. Additionally, the examiner noted that there was no record of treatment or complaints of hearing loss in the Veteran's service treatment records (STRs). Based on the 2005 IOM report cited by the examiner, the examiner concluded that based on the current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. However, in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, the Board finds that remand is necessary. See McCray v. Wilkie, 31 Vet. App. 243 (2019). In this decision, the Court highlighted the contradictory findings regarding delayed onset hearing loss in the IOM report. Specifically, the VA medical opinion noted that the IOM report concluded, in part, that based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that delayed effects occurred. However, the IOM report also indicates that "[t]here 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" and that "definitive studies to address this issue have not been performed." Therefore, the Court held that any future opinion predicated on the IOM reports' findings regarding delayed onset hearing loss must address these inconsistencies. As the May 2021 VA examiner relied on this IOM study without addressing these inconsistencies, the Board finds the opinion inadequate and a remand for an addendum opinion is necessary. Additionally, the Board is aware of a line of medical research, conducted by Dr. Sharon G. Kujawa and others, that does appear to support a medical basis for delayed or latent onset of noise-induced hearing loss. As it is unclear from the Janaury 2021 VA opinion whether that line of research was considered in reaching the conclusions offered, the Board finds that it should be considered by the examiner as well. Based on the foregoing, the Board finds that an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his right ear hearing loss disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Send the Veteran's claims file to the January 2021 VA examiner or, if unavailable, to another audiologist for an addendum opinion. The claims file must be reviewed by the audiologist. If another examination is deemed necessary, one should be scheduled. 2. Following review of the claims file and, examination of the Veteran if deemed necessary, the audiologist should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's right ear hearing loss began during or is otherwise related to his period of active-duty service or that a hearing loss disability manifested within a year of his separation from service? The examiner should keep in mind that the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find that there is no nexus to service. Rather, the salient question is whether any incident of service, including the Veteran's noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after discharge from service. (c) In responding to the question posed in (a), please note the Veteran is competent to report symptoms, treatment, and injuries and his reports must be considered in formulating the requested opinions. Also, in issuing the opinions, please specifically address the findings regarding the delayed onset of hearing loss in the line of research conducted by Dr. Kujawa, including the below: (b.) Sharon G. Kujawa & M. Charles Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, 26(7) J. Neurosci. 2115-2123 (2006). (c.) Harrison W. Lin, Adam C. Furman, Sharon G. Kujawa & M. Charles Liberman, Primary Neural Degeneration in the Guinea Pig Cochlea After Reversible Noise-Induced Threshold Shift, 12 J. Ass'n Res. Otolaryngol. 605-616 (2011). (d.) Adam C. Furman, Sharon G. Kujawa & M. Charles Liberman, Noise-Induced Cochlear Neuropathy is Selective for Fibers with Low Spontaneous Rates, 110 J. Neurophysiol. 577-586 (2013). In formulating a medical opinion, if relying to any extent upon the 2005 IOM study, the examiner must (a) identify the medical text's qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset left ear hearing loss is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. Please also discuss the impact of the Veteran's in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as (50 percent probability or more) not that his left ear hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service noise exposure. A complete rationale for all opinions must be provided, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner cannot provide a requested opinion without resort to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need or information or testing necessary to provide an opinion. Additionally, the examiner should indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.