Citation Nr: 21075497 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-01 828 DATE: December 20, 2021 ISSUES Entitlement to service connection for a bilateral hearing loss disability. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in a Travel Board hearing in March 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In August 2019, and more recently in May 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board again finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran has claimed that his bilateral hearing loss disability is due to his active-duty service. The Veteran was given a Board Hearing in March 2019. During the hearing, the Veteran testified before the undersigned Veterans Law Judge that he believes his hearing loss is due to his continued firing of M60 weaponry, and his proximity to explosions while in service. He stated that he was not given hearing protection. The Veteran also testified that he started notice hearing loss symptoms from the time that he was in Vietnam, but the Veteran's Representative argued that the hearing loss may have also been delayed in its onset. Following service, the Veteran stated that he worked construction for a few years, although he was given hearing protection for that job. The Veteran is competent to report the symptoms he experiences, such as those associated with his hearing loss. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the Veteran's claim was previously before the Board in August 2019. In that Decision, the Board found that the previous etiological opinions provided by VA examiners were inadequate. In brief, the Board found that the March 2013 and October 2015 VA examiner's reports failed to take account of the lay statements and claims of the Veteran, as neither report discussed any event, injury, and/or claim that the Veteran had raised regarding his in-service noise exposure. As such, the Veteran's claim was remanded in August 2019 for another VA examination. The examiner was asked to specifically acknowledge the lay statements of the Veteran, with particular attention to his March 2019 testimony. That VA audiological examination occurred in February 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. The examiner then wrote that the Veteran's disability was less likely than not due to his military service, and the following rationale was provided: there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. Separation exam in March 1972 showed normal hearing with thresholds at 5-10 dB. There is no report of complaints/treatment for hearing decrease in STRs or at separation. 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. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case; therefore, it is less likely than not that the hearing loss is related to military noise exposure. Thus, a negative etiological opinion was provided. Following that VA examination however, the Veteran's Representative submitted an Appellate Brief in May 2021. In brief, the Representative argued that (1) the Veteran's separation exam showed worsening of hearing in all areas except one where it improved, when compared to the entrance exam; and (2) a Fact Sheet from the National Institute on Deafness and Other Communication Disorders indicates that "exposure to impulse or continuous loud noise may [cause] residual long-term damage to your hearing." The Fact Sheet is available at https://www.nidcd.nih.gov/sites/default/files/Documents/health/hearing/NIDCD-Noise-Induced-Hearing-Loss.pdf. In the subsequent May 2021 Board Decision, the Board then confirmed that the entrance and separation audiological examinations attached to the Representative's Brief are accurate from the Veteran's service treatment records. The Board has also confirmed the potential finding from the National Institute on Deafness and Other Communication Disorders. See NIDCD Fact Sheet: Noise-Induced Hearing Loss, Id. Thus, in May 2021, the Board remanded the matter for a VA addendum opinion, as the Board was not permitted to make medical determinations as to the nature and etiology of the Veteran's bilateral hearing loss disability, specifically those regarding the potential for delayed onset hearing loss from the NIDCD Fact Sheet. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter); see further, 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. That VA addendum opinion was given in June 2021. The Veteran was not seen in person, although that was not requested. The VA audiologist reviewed the Veteran's claims file, and then provided an opinion that the Veteran's bilateral hearing loss disability was less likely than not due to his active-duty service. The VA audiologist then provided a detailed rationale that considered the Veteran's in-service noise exposure, along with his lay statements and testimony. The opinion also discussed the arguments submitted by the Representative, including that his hearing had become following his entrance exam, as well as the National Institute on Deafness Fact Sheet. They then opined that "there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise." The RO then requested a further addendum opinion, which was rendered by a different VA audiologist in August 2021. That audiologist stated that it was less likely than not that the Veteran's bilateral hearing loss disability was due to his conceded in-service noise exposure. They also provided a detailed rationale, which considered the Veteran's testimony and lay statements. They noted that "a review of the Veteran's claims file yielded no evidence of a hearing loss or significant decline in hearing thresholds greater than normal measurement variability during military service. Importantly, the report also noted the following: The Institute of Medicine (IOM) states that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is 'unlikely.' Based on the objective evidence showing that the Veteran's hearing was normal and stable throughout military service, and absent any evidence indicating that the Veteran sought treatment for the claimed condition within a reasonable time frame following service, it is the opinion of this examiner that the Veteran's current bilateral hearing loss is less likely than not the result of or caused by an event during military service, including noise exposure ... therefore, hearing loss was not caused by or aggravated by military service, including noise exposure. As such, a negative etiological opinion was again provided. Having said that, in June 2019, the U.S. Court of Appeals for Veterans Claims (Court) held that the Board must address a medical text that serves as the basis for a medical opinion which contains apparent qualifiers or contradictions to explain whether those aspects of the medical text diminish the probative value of the medical opinion. See McCray v. Wilkie, 17-1875 (2019). The Court provided that the Board may seek clarification from the medical professional if assistance in understanding or interpreting the underlying the medical text evidence is required. See Id. Indeed, the medical study relied on by the August 2021 audiologist is the same one discussed by the Court in McCray. Specifically, the VA medical opinion in McCray noted that the IOM report concluded, in part, that there is no sufficient scientific basis for the existence of delayed-onset hearing loss. 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." Any future opinion predicated on the IOM report's findings regarding delayed onset hearing loss must address these inconsistencies. Id. The Board is reminded that the Veteran's claim, which includes his lay statements, his March 2019 testimony, and the subsequent Appellate Briefs submitted by the Veteran's Representative, have argued that the Veteran's bilateral hearing loss may be a disability of delayed-onset, following his in-service noise exposure. Thus, as the VA medical opinion from August 2021 relies on the IOM report, and does not purport to address the inconsistencies of that report, the Board finds that a further clarifying opinion is required. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Forward the Veteran's claims file to the same VA audiologist who provided the August 2021 VA addendum opinion for a further clarifying opinion regarding the etiology of the Veteran's bilateral hearing loss disability. The entire claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The examiner is asked to offer an opinion as to the following: (a.) whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss disability is causally related to, or aggravated by, his military service. Any opinion should include a complete and detailed rationale. The theory of delayed or latent onset of hearing loss as it relates to the facts of the Veteran's case must be addressed. The examiner must explain how, if at all, medical treatise evidence (such as the IOM report referenced herein) contributed to the etiology opinion. The Board cautions the examiner to carefully explain the rationale of their medical opinion, especially when relying on any potentially qualifying or contradictory aspect of the IOM report or other medical texts. See McCray v. Wilkie, 17-1875 (2019). (Continued on next page.) 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.