Citation Nr: 21074228 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-55 398 DATE: December 14, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to December 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 2015. In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in October 2018 and June 2020. Following the Board's most recent remand, a rating decision of May 2021 granted service connection for pseudofolliculitis barbae. In addition, a rating decision of August 2021 granted service connection for the following disabilities: bilateral flat feet with callus condition; Haglund's deformity, bilateral heels; degenerative arthritis, other than posttraumatic claimed as left knee; degenerative arthritis, other than posttraumatic claimed as bursitis, right knee; degenerative disc disease other than intervertebral disc syndrome (IVDS) (claimed as lower back condition); radiculopathy, left lower extremities; radiculopathy, right lower extremities; gastroesophageal reflux disease (GERD); osteoarthritis, hip claimed as left hip condition; osteoarthritis, hip claimed as right hip condition; and s/p fracture of right fifth metacarpal (claimed as right hand injury). Because service connection has been granted for these claimed disorders, the corresponding service-connection issues that were remanded by the Board in June 2020 are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The only issue remaining on appeal before the Board is entitlement to service connection for bilateral hearing loss. It should be noted that, while a supplemental statement of the case (SSOC) issued in October 2021 purports to deny service connection for GERD, to include acid reflux, service connection for GERD was granted by the August 2021 rating decision, with a 10-percent rating and an effective date of November 20, 2014. 1. Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss was denied by a rating decision of April 2015. The Veteran filed a notice of disagreement (NOD) in April 2015 and VA Form 9 in November 2016. The Veteran testified before the Board that his hearing was damaged during service, when he was exposed to the booming sound of a five-inch gun that was fired as part of a gunfire exercise while he was below deck on a cruise. He also cites noise exposure from firing weapons firing during field exercises and from the ship equipment used when working on five-ton trucks. He maintains that he has had recurrent symptoms of hearing loss from an in-service onset to the present. The Veteran most recently underwent a VA audiological examination in April 2021. Bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz was diagnosed. The examiner offered a negative nexus opinion. The stated rationale rested on the following considerations: the Veteran served in the Marines from 1975-1978; in-service audiograms of 1975, 1977 and 1978 indicate normal hearing thresholds throughout his time in the service; the Veteran testified before the Board that, during his service, he was exposed to the booming sound of a five-inch gun that was fired as part of a gunfire exercise while he was below deck on a cruise; according to the Institute of Medicine (2006), there is an insufficient scientific basis to conclude that a permanent hearing loss attributed to noise exposure will develop long after noise exposure; and the Veteran reports occupational noise exposure after his time in the service which could serve as explanation for the current hearing loss found upon examination. The examiner determined that it is less likely than not that the Veteran's hearing loss is a result of military noise exposure. She found "no nexus of auditory damage to link current hearing loss to active duty noise exposure." A further nexus opinion was obtained from a different VA audiologist in October 2021. In the clinician's opinion, based on records review only, the Veteran's hearing loss disorder was at least as likely as not incurred in, or caused by, the claimed in-service injury, event, or illness. The rationale for the positive opinion, however, was that the clinician agreed with the previous opinion of April 2021. It was determined that no new and relevant information had been received since that previous examination. In the space provided for a rationale, the clinician quoted the entire rationale given by the April 2021 VA examiner. An adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). In this case, neither nexus opinion of record considers the Veteran's competent report, when testifying before the Board in July 2018, that he has experienced recurrent hearing loss symptoms from an in-service onset to the present. The opinion of the October 2021 clinician is also inadequate because a negative rationale was given for a positive nexus opinion. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A VA examination and nexus opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the current medical opinions are not adequate, the Board will remand for an additional medical opinion. 38 C.F.R. § 19.9(a). The matter is REMANDED for the following action: 1. In remanding this issue, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issue. All efforts to obtain any outstanding records should be documented in the claims file. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss disorder. The clinician must opine as to whether the disorder at least as likely as not: a. Is caused by an in-service injury, disease, or event, to include the Veteran's competent account of in-service noise exposure from multiple sources, an in-service onset of hearing loss, and recurrent hearing loss experienced from service to the present, as reflected in his testimony before the Board and any relevant statements made upon prior medical examination; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service or the year following service. Notify the clinician that, regardless of whether hearing loss is documented by the service treatment records, evidence of a current hearing loss disorder and a medically sound basis for attributing that disorder to service may provide 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 a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Notify the clinician that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on the next page) If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.