Citation Nr: A21019286 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 191120-44464 DATE: December 3, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a left ankle fracture, to include as due to a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from November 1993 to February 2000. This appeal comes to the Board of Veterans' Appeals (Board) under the Appeals Modernization Act (AMA) review system from an October 2019 Regional Office (RO or AOJ) rating decision. The Veteran was provided notice of that rating decision on October 28, 2019. In an August 2020 decision, the Board, in part, denied the Veteran's claim for service connection for bilateral hearing loss and for residuals of a left ankle fracture, to include as due to a right knee disability. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2021 Joint Motion for Partial Remand (JMPR), the Court vacated that part of the Board's decision that denied service connection for bilateral hearing loss and for residuals of a left ankle fracture, to include as due to a right knee disability and remanded the claim to the Board. The Veteran had, in November 2019, submitted his VA Form 10182 Decision Review Request: Board Appeal (AMA Notice of Disagreement), selecting direct review by a Veterans Law Judge (VLJ). As such, only the evidence of record at the time of the issuance of the October 2019 rating decision will be considered. See Andrews v. McDonough, 34 Vet. App. 151 (2021). It should be noted that under the AMA following a Board remand the appeal will not automatically return to the Board for further adjudication; a new AMA Notice of Disagreement or Supplemental Claim would have to be filed by the Veteran or his representative to pursue any further claim related to the issues remanded by the Board in August 2020. Additionally, the Board notes that the Veteran filed a claim to reopen service connection for a right knee disability in his claim received on May 28, 2019. The AOJ did not adjudicate that issue and, therefore, the Board cannot adjudicate that issue. The Veteran may resubmit the claim to reopen service connection for a right knee disability to the AOJ or notify the AOJ that the issue is still pending. Evidence was added to the claims file during a period when new evidence was not allowed. As the Board is remanding the claims of entitlement to service connection for bilateral hearing loss and for residuals of a left ankle fracture, to include as due to a right knee disability for further development, this additional evidence will be considered by the RO in the adjudication of those claims. 1. Entitlement to Service Connection for Bilateral Hearing Loss is Remanded. This issue is remanded to correct a duty to assist error that occurred prior to the October 2019 rating decision on appeal. The Veteran underwent a VA audiological examination in August 2019. The VA examiner reached a negative opinion based partially on a citation to an Institute of Medicine Study (IOM) (2006) study Noise and Military Service - Implications for Hearing Loss and Tinnitus. The examiner indicated that this study showed that the current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss. The Board finds the VA examiner's opinion currently inadequate. In McCray v. Wilkie, 31 Vet. App. 243, 256 (2019), the Court explained that the apparently qualifying or contradictory statements in the IOM report impact the probative value and adequacy of a VA medical opinion that relied on the IOM report. Here, without explaining how those qualifying statements in the IOM study impact the opinion, the Board finds the examiner's opinion to be currently inadequate to resolve the issue. As such, remand for a new opinion is needed. Entitlement to Service Connection for Residuals of a Left Ankle Fracture, to include as due to a Right Knee Disability is Remanded. This issue is also remanded to correct a duty to assist error that occurred prior to the October 2019 rating decision on appeal. In doing so, the Board acknowledges the Veteran has asserted a right knee secondary service connection argument. However, there is no pre-decisional error so the issue cannot be remanded on that basis. However, the Board finds the rationale provided for direct service connection is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this regard, the Veteran was afforded a VA examination for his left ankle disorder in October 2019. In an October 2019 VA medical opinion, the examiner concluded that the Veteran's left ankle disorder was less likely than not due to the Veteran's active service. The rationale relied upon by the examiner was primarily based on a finding that the Veteran's in-service left ankle disorder was acute and transitory notwithstanding the Veteran's report that he has continued to experience stiffness and pain in his left ankle since service. See October 2019 VA examination. Thus, when providing a negative rationale for the Veteran's left ankle disorder, the examiner failed to consider the Veteran's statements of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). As such, remand for a new opinion is needed. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the Veteran's bilateral hearing loss. In the event the clinician from whom this opinion is requested concludes that an examination is necessary, please schedule such examination. Based on a review the record, and with consideration of the Veteran's lay statements, the examiner is asked to address whether the Veteran's bilateral hearing loss is at least as likely as not (an approximate balance of evidence) related to an in-service injury, event, or disease. (Continued on the next page) If, in answering this question, the examiner relies on the IOM 2006 study, Noise and Military Service - Implications for Hearing Loss and Tinnitus, the examiner must explain how the qualifying and contradictory statements in the IOM report impact the examiner's ultimate conclusion as to whether the Veteran's bilateral hearing loss is related to service. 2. Obtain an opinion from an appropriate clinician regarding the Veteran's left ankle disorder. In the event the clinician from whom this opinion is requested concludes that an examination is necessary, please schedule such examination. Based on a review the record, and with consideration of the Veteran's lay statements, the examiner is asked to address whether the Veteran's residuals of a left ankle fracture are at least as likely as not (an approximate balance of evidence) related to an in-service injury, event, or disease including the in-service twisted left ankle. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.