Citation Nr: 21075442 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 20-09 192 DATE: December 20, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to February 1970. The Board thanks him for his service. He appeals from a June 2015 rating decision based on a claim filed in April 2015. In a June 2020 decision, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans' Claims (Court). In a June 2021 Order granting a June 2021 Joint Motion for Partial Remand (Joint Motion), the Court partially vacated the Board's June 2020 decision and remanded the matter of entitlement to service connection for bilateral hearing loss for further development in compliance with the directives specified in the Joint Motion. The Court did not disturb the Board's award of entitlement to service connection for tinnitus. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts entitlement to service connection for bilateral hearing loss, which he contends was incurred as a result of in-service noise exposure. With respect to in-service injury, the Veteran has asserted that in 1969, while he served aboard the destroyer USS Buck DD-761, the ship operated in the waters off of Vietnam and engaged in combat with targets and forces on shore. See the Veteran's statement dated August 2015. He stated that he was extensively exposed to noise from the firing of ships' guns and machine guns. Id. To this end, the Veteran's service personnel records reflect that his service aboard the USS Buck included a period from April to November 1969. He submitted an internet article on the USS Buck's operations. That article indicates that the USS Buck was in the waters off Vietnam in April 1969. Considering the Veteran's accounts and the assembled records, his in-service exposure to weapons fire noise during service has been conceded. See the Board decision granting service connection for tinnitus dated June 2020. With respect to current diagnosis, the March 2015 private audiologist report and the December 2019 VA audiology examination confirmed that the Veteran has right ear hearing loss sufficient for VA compensation purposes. 38 C.F.R. § 3.385. However, the December 2019 VA audiology examination did not show left ear hearing loss sufficient for VA compensation purposes. Although the March 2015 private audiologist documented a speech recognition score of 92 percent in the left ear, the report did not indicate whether the speech recognition scores were obtained using the Maryland CNC test, as required by 38 C.F.R. § 4.85(a). Where a private examination report reasonably appears to contain information that is "relevant, factual, and objective" and is necessary to properly decide a claim, VA has a duty to either (1) ask the private examiner to clarify the report, or (2) request that the claimant obtain the necessary information to clarify the report. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). As such, remand is required for the private audiologist to be asked to clarify if the Maryland CNC or some other testing was utilized in the word discrimination testing. As to the question of nexus, the parties to the Joint Motion indicated that, in the June 2020 decision, the Board did not adequately explain whether it relied on the medical evidence of record. The parties noted that the Board instead discussed and interpreted the underlying data and appeared to reach its own medical conclusion. Notably, a VA audiological examination was obtained in December 2019 in which the examiner rendered a negative nexus opinion. The examiner explained that no service treatment records were available for review. The examiner then opined, "while some mild clinical hearing loss is present in the 500 to 4000Hz range, hearing thresholds do not meet the criteria for disability under VA regulations." The examiner therefore concluded that the Veteran's "hearing loss is less likely as not due to military acoustic trauma." Critically, the December 2019 VA examiner failed to address the Veteran's lay statements concerning his in-service noise exposure episodes and symptoms of decreased hearing acuity in service and thereafter. Moreover, as the Veteran's in-service noise exposure has been conceded by the Board, this should explicitly be addressed by the VA examiner. Additionally, in the November 2021 Appellate Brief Presentation, the Veteran's representative directed the Board to consider a recent military hearing loss study from the University of Cambridge, entitled 'Diagnosis and Quantification of Military Noise-Induced Hearing Loss,' published in the Journal of the Acoustical Society of America (August 2020). The medical evidence currently of record is therefore inadequate to resolve the claim of entitlement to service connection for bilateral hearing loss. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Upon remand, an updated VA audiology examination should be obtained to address outstanding questions of diagnosis and nexus as to the pending claim. In rendering his/her opinion, the examiner must consider the Veteran's lay statements concerning the onset of his hearing loss, as well as pertinent medical literature to include the article referenced by the Veteran's representative. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. After obtaining any additional information and authorization necessary, undertake appropriate efforts to procure any records of outstanding private and VA treatment. All such available documents should be associated with the claims file. 2. Then contact the private treatment provider who conducted the March 2015 audiological testing and request clarification as to the following: (a) whether the audiologist (who conducted the audiological evaluation conducted in March 2015) is a state licensed audiologist; and (b) whether speech discrimination testing conducted used the Maryland CNC test, and if applicable, whether the use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. In the event that the RO is unable to obtain this clarification, contact the Veteran and afford him the opportunity to do so. 3. Arrange for the Veteran to undergo a VA audiology examination to address his claim of service connection for bilateral hearing loss. Access to the electronic claims file must be made available to the examiner for review in connection with the examination. With respect to any diagnosed right and/or left hearing loss sufficient for VA compensation purposes, the examiner should render an opinion as to: whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) had its onset during service, (b) manifested to a compensable degree within the first post-service year; or (c) is otherwise related to in-service injury or disease, to particularly include the conceded in-service noise exposure. In providing the requested opinion and rationale, the examiner MUST ADDRESS the relevant evidence of record, to include: (a) the Veteran's conceded in-service noise exposure, (b) the Veteran's description of his in-service noise exposure; (c) the Veteran's description of his decreased hearing acuity in service and thereafter; and (d) the article referenced above by the University of Cambridge, entitled 'Diagnosis and Quantification of Military Noise-Induced Hearing Loss,' published in the Journal of the Acoustical Society of America (August 2020). If there is any medical reason to accept or reject the proposition that the Veteran's reported noise exposure and symptoms in service and thereafter represented the onset of his current hearing loss disability, this should be noted. Stated another way, do the Veteran's reports about his noise exposure and symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is also informed that the absence of in-service evidence of a hearing loss disability is not fatal to a claim of service connection for hearing loss. Rather, 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. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.