Citation Nr: 21074712 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-46 029A DATE: December 16, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to July 1975 with additional service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans (VA) Regional Office. In February 2020, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the record. In March 2021, the Veteran was notified that the Veterans Law Judge was no longer employed at the Board and that he had a right to another Board hearing. Later the same month, the Veteran declined the opportunity for another Board hearing and requested that his case be decided on the evidence of record. Therefore, the Board may proceed with adjudication of the claim. The claim was remanded in April 2020 and July 2021 for additional development and they now return for further appellate review. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his currently diagnosed bilateral hearing loss is related to the acknowledged hazardous noise exposure during his active-duty service and service with the National Guard. In multiple statements of record, the Veteran reported that while he was given ear plugs during service, such were defective, and did not provide adequate protection to the high-intensity noise from air crafts, gunfire, and explosions. In January 2021, the Veteran's spouse wrote that the Veteran's hearing worsened over the years, and how the years of working in high noise areas has compounded over the years, reaching a point where he could no longer deny the severity of his hearing loss. Moreover, two statements from fellow servicemembers were received in January 2021, which noted that the Veteran experienced hearing difficulty during service, despite the use of hearing protection. In an October 2020 opinion, a VA examiner reported that the Veteran's hearing was normal upon entrance and separation from service, and also twice in 2015. The examiner further reported that there is no evidence, in human studies, that suggests that hearing loss due to noise exposure will continue to worsen once noise exposure has ceased. Thus, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not incurred in or caused by his acknowledged in-service noise exposure. In August 2021, a VA examiner also opined that the Veteran's hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that there is no significant permanent shift in hearing thresholds beyond test variability from entrance in 1973 from active-duty Army to separation in 1998 from National Guard duty, which is objective evidence of no permanent auditory damage in active duty from conceded noise. The VA examiner explained that there is no report of complaints or treatment for hearing decrease in the service treatment records or at separation. The VA examiner further explained that hearing loss is first noted in an audiogram from a private audiologist in 2016 and again in 2017 and 2018. The VA examiner noted that although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. Thus, the VA examiner opined that the evidence is against a nexus, and hearing loss is less likely than not related to military noise exposure. However, the October 2020 and August 2021 VA examiners did not address the Veteran's lay statements regarding experiencing hearing loss while in service. Moreover, the January 2021 statements from fellow service members and the January 2021 statement from the Veteran's spouse was not addressed in the provided opinions. Rather, the examiner improperly relied upon the absence of evidence in the Veteran's service treatment records to provide a negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consequently, a remand is necessary in order to obtain an addendum opinion addressing such matters. The matters are REMANDED for the following action: Forward the record, to include a copy of this Remand, to the clinician who conducted the April 2021 examination, or an appropriate substitute, if unavailable. After a review of the evidence, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset in, or is otherwise related to, his military service. In offering an opinion, the clinician must address and discuss the Veteran's statements, as well as the January 2021 statements by the Veteran's spouse and fellow servicemembers, pertaining to his history of relevant symptomatology during and since service. In this regard, the clinician should discuss the Veteran's assertions that his hearing began to decrease while in service, due to the exposure from air crafts, gunfire, explosions, and construction equipment, and that he did not have adequate hearing protection while in service. The clinician is also advised that the absence of documented evidence of symptoms referable to bilateral hearing loss in the Veteran's service treatment records may not be the sole basis of a negative opinion. A rationale for any opinion offered should be provided. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.