Citation Nr: 21077378 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-52 225 DATE: December 29, 2021 REMANDED The issue of entitlement to service connection for right ear hearing loss is remanded. The issue of entitlement to service connection for left ear hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1969 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO reopened the Veteran's previously denied claims of service connection for bilateral hearing loss and tinnitus and denied those claims on the merits. The Veteran disagreed with the denials of service connection for bilateral hearing loss and tinnitus and subsequently perfected an appeal of the issues to the Board. With regard to the Veteran's claims for service connection for bilateral hearing loss and tinnitus, the Board notes that normally a separate analysis of whether new and material evidence has been received to reopen a previously denied claim is required, as it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Board has reviewed the evidence received since the RO most recently denied service connection for bilateral hearing loss and tinnitus in November 2008 and agrees with the RO that new and material evidence, as defined by 38 C.F.R. § 3.156 and as enunciated by the United Stated Court of Appeals for Veterans Claims (Court) in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), has been received. Specifically, since the claim was last denied, the Veteran, in March 2017, underwent a VA audiological examination, the report of which contains findings relevant to the claims of service connection for bilateral hearing loss and tinnitus. The Board finds this evidence is new and material evidence sufficient to reopen the previously denied claims for service connection for bilateral hearing loss and tinnitus. Thus, rather than engage in a lengthy analysis comparing the evidence submitted since the previous final denial with evidence previously of record, the Board will simply consider the claims "reopened" and will adjudicate only the issue of whether service connection is warranted for hearing loss and/or tinnitus. Turning first to the claim of service connection for hearing loss, the Board notes that for purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At the outset, the Board notes that in March 2017, the Veteran was afforded a VA audiological examination. A review of the audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Board also points out that in the examination request, the RO indicated that the Veteran's military occupational specialty was that of attack helicopter repairer, which has a high probability for hazardous noise exposure. Accordingly, in-service noise exposure consistent with the Veteran's military occupations is conceded. Thus, the question is one of nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (providing that service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). Regarding the issue of nexus, the Board points out that the Veteran's January 1969 service entrance examination report included the results of an audiogram that recorded his pure tone auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5(10) -5(5) -5(5) 0(5) LEFT 30(45) 35(45) 15(25) 50(55) The Veteran's October 1970 separation examination report included the results of an audiogram that recorded his pure tone auditory thresholds as follows HERTZ 500 1000 2000 3000 4000 RIGHT 15(30) 15(25) 10(20) 20(20) 10(15) LEFT 15(30) 15(25) 10(20) 15(25) 15(20) Historically, the Board has considered audiometric results based on the approach that prior to November 1967, audiometric results were consistent with standards set forth by the American Standards Association (ASA), and that since November 1, 1967, those standards were set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). However, as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units, where an audiogram is conducted between January 1, 1967 and December 31, 1970, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. The numbers in parentheses above reflects a conversion to ISO standard for comparison purposes. The Board notes that it is well established that every veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Here, considering both ASA units and ISO-ANSI units, the Veteran's entrance audiograms demonstrates that he had left ear hearing loss that pre-existed service, but that his right ear hearing was within normal limits at the time of entry into service. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (stating that to have pre-existed service, the level of hearing impairment must meet the criteria to be considered a "disability" under 38 C.F.R. § 3.385). Accordingly, the Veteran's claim of service connection for right ear hearing loss must be addressed only on the basis of direct service connection; regarding this left ear hearing loss, however, it appears that the Veteran must seek service connection on the basis of aggravation of a pre-existing condition, see Wagner, supra. Given this distinction, the Board finds that service connection for the right and left ears must be addressed separately. In March 2017, the Veteran was afforded a VA audiological examination. The audiologist diagnosed right and left ear hearing loss, but opined against an etiological association to service. Regarding the Veteran's right ear, the audiologist noted that the Veteran's hearing was withing normal limits at the time of enlistment and separation and that there was no record of any reported ear problems during service. The audiologist noted that the Veteran had mild to moderate hearing loss in the left ear at the time of enlistment and normal hearing at the time of separation. The audiologist then discussed that the Institute of Medicine (IOM) has stated that "there 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." The audiologist noted that the IOM's conclusion was based on their current understanding of auditory physiology, in that a prolonged delay in the onset of noise-induced hearing loss was "unlikely". The audiologist opined, therefore, that based on objective evidence (the audiograms at enlistment and separation), it is less likely than not that the Veteran's current hearing loss is due to or a result of in-service noise exposure. In McCray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) reviewed a Board decision that adopted a medical opinion citing the same IOM report at issue here for the proposition "that noise-induced hearing loss occurs immediately and there is no scientific support for delayed onset noise-induced hearing loss." 31 Vet. App. 243, 250 (2019). In that case, the examiner had also referenced what was determined to be qualifying language in the IOM report. The Court thus held that "where the veteran's arguments concerning apparently qualifying or contradictory statements in the IOM report were of record when the Board made its decision, the Board was obligated to address the issue when assessing the probative value and adequacy of the medical opinion that relied on the IOM report." Id. at 257-58. In other words, the Board must address qualifying or contradictory aspects of the medical article when the issue is expressly raised by the veteran or reasonably raised by the evidentiary record. Reviewing the portions of the IOM study cited to by the VA examiner, the Board notes that it appears to contain contradictory information. Indeed, the examiner first noted that the IOM stated there was "insufficient scientific basis" upon which to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure, but then relied on the IOM panel's conclusion that delayed-onset hearing loss was "unlikely". It is unclear from the evidence cited to by the VA examiner how the panel arrived at the conclusion that delayed-onset hearing loss was unlikely. Indeed, although it is stated there was no evidentiary or scientific support for the delayed-onset theory of hearing loss, there is nothing in the evidence cited to by the VA examiner to indicate that it had been ruled out. As such, the Board finds that the IOM report alone is insufficient to support the examiner's conclusion that it is less likely than not that the Veteran's hearing loss is related to his on-service noise exposure. Further, it does not appear as though the VA examiner applied the correct standard with regard to the Veteran's pre-existing left ear hearing loss. Moreover, it is unclear whether the VA examiner's opinion would have differed had he considered both ASA units and ISO-ANSI units when looking at the Veteran's in-service hearing data. Accordingly, as it would appear that the VA examiner's negative nexus opinion was based solely on the IOM report and lack of evidence demonstrating hearing loss in service in concluding that the Veteran's hearing loss is related to service, the Board cannot conclude that the examination report is sufficient to rely upon in this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that after the claim was certified for appeal to the Board, the Veteran submitted a seemingly positive private nexus opinion from a Dr. M.S., Ph.D., CCC-A, FAAA. Specifically, the private clinician opined that it is more likely than not that the Veteran's current right ear hearing loss and tinnitus were caused or aggravated by in-service noise exposure. Notably, it does not appear as though the private clinician had access to the Veteran's claims file. See Nieves-Rodriguez, 22 Vet. App. at 304 (failure by an examiner to review a claims file will render an examination inadequate if there is information in the claims file that is important and necessary for a doctor to make an informed medical opinion). Further, the Veteran reported to the private clinician that his tinnitus started in service; however, during the Veteran's VA audiological examination, the Veteran stated that he could not remember when his tinnitus started. Given this contradictory statement, the Board finds that the private clinician's opinion cannot be relied upon because it is not based on all relevant evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the examiner to consider all of the relevant evidence before forming an opinion). Ultimately, because the medical evidence developed by VA is not adequate to rely upon in this case, the Veteran's claim for service connection for bilateral hearing loss must be remanded for a new medical opinion, as set forth below. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). Moreover, as the VA audiologist attributed the Veteran's tinnitus to his hearing loss, the Board finds that the claim of service connection for tinnitus must be remanded as it is intertwined with the hearing loss claims. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records and audiograms with the claims file. VA treatment records appear to be up to date as of February 1, 2017. 2. Arrange to obtain from an appropriate VA clinician a medical opinion addressing the etiology of the Veteran's right and left ear hearing loss and tinnitus, based on claims file review (if possible). Only arrange for the Veteran to undergo a VA examination if deemed necessary in the judgment of clinician designated to provide the addendum opinion. After reviewing the record, and examining the Veteran if deemed necessary, the clinician should provide the following opinions: a) did the Veteran have left ear hearing loss that pre-existed service? The audiologist must cite to the evidence of record to support that conclusion, and should consider both ASA units and ISO-ANSI units when looking at the Veteran's in-service hearing data. b) . if the examiner finds that left ear hearing loss pre-existed service, can it be concluded that there was an increase in loss of acuity during military service beyond the natural progression of the disease? c) can the October 1970 audiometric data recorded on the Veteran's separation examination report be considered a valid measure of hearing acuity at that time? In so concluding, the audiologist should discuss the significance of the evidence suggesting a betterment of hearing acuity during service, as demonstrated by the improved threshold shifts from entrance to separation for the left ear. d) is it at least as likely as not that the Veteran's current right ear loss hearing loss had its onset in service or is otherwise related to his military service. In so concluding, the audiologist must take into consideration the lay statements of record concerning the onset and continuity of hearing loss. e) is it at least as likely as likely as not that the Veteran's tinnitus had its onset during active duty or is otherwise attributable to service. In so concluding, the audiologist must take into consideration the lay statements concerning the onset and continuity of tinnitus symptoms. In answering the above questions, the clinician is specifically advised that the Veteran's active duty tour lasted from March 1969 to October 1970. As such, for every in-service audiogram analyzed, the clinician must state whether it clearly states whether it is recorded in ASA or ISO-ANSI units. If the audiogram does not so state, then the clinician must consider values in both units, and explain the relevance or lack thereof of considering the values in each standard. Also, if the clinician relies on the IOM study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, the clinician must explain how the qualifying and contradictory statements in the IOM report impact the examiner's ultimate conclusion as to whether the Veteran's current hearing loss is related to service. The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician should address the pertinent evidence in the service treatment records, post service medical records and examinations, and the lay evidence of record. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.