Citation Nr: 21008034 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-05 927 DATE: February 11, 2021 REMANDED Entitlement to service connection for right ear hearing loss disability is remanded. Entitlement to a compensable rating for left ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1954 to May 1958. Thereafter, he served in the Army National Guard of Virginia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Board hearing. In May 2019 and August 2020, the Board remanded the Veteran’s claims. The Board notes that the Veteran returned a completed VA 21-4142 Authorization for Release of Information, which did not list the name of private providers. He also did not complete VA 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). The Veteran is reminded that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 1. Entitlement to service connection for right ear hearing loss. The Veteran contends that he has right ear hearing loss due to noise exposure in service. Specifically, he contends that he worked within 100 feet of the flight lines, and was exposed to noise from engines running at all times as well as artillery noise. See Statement in Support of Claim (September 2014); Hearing Transcript (January 2019). He stated that he cannot understand people, including via telephone, and cannot hear anything without hearing aids. See Correspondence (September 2020). As an initial matter, the Board notes that a right ear hearing loss disability as defined at 38 C.F.R. § 3.385 is shown and in-service noise exposure has been conceded. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Afterwards, audiometric results standards were set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, audiometric results dated prior to November 1967, such as the Veteran’s service enlistment examination, must be converted from ASA units to ISO units for proper comparison between the Veteran’s enlistment and separation test results. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 at 500 Hertz (Hz), 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz and 5 at 4000 Hz. Service treatment records (STRs) reflect that, on service entry, in 1954, audiometric findings were not recorded. Rather, the examination report shows whisper voice findings of 15/15 for each ear. The Veteran’s March 1958 service separation examination reflects, for the right ear, the following audiometric findings in decibels (show both prior to and after conversion to ISO standard). [March 1958] HERTZ 500 1000 2000 3000 4000 ASA 10 15 0 10 10 ISO 25 25 10 20 15 Following the Veteran’s active duty, he served in the Army National Guard of Virginia. Associated STRs reflect the following findings in decibels for the right ear: HERTZ 500 1000 2000 3000 4000 1986 20 20 20 20 20 1989 25 25 15 25 25 A hearing loss disability of the right ear as defined by VA at 38 C.F.R. § 3.385 is not shown at service separation. However, the threshold for normal hearing is from 0 to 20 decibels and the Veteran’s 1958 service separation examination reflects a 25-decibel loss at both the 500 and 1000 Hertz frequencies. See Hensley v. Brown, 5 Vet. App. 155, 159 (The Court has established that the threshold for normal hearing is from 0 to 20 decibels). In its August 2020 remand, the Board remanded for a medical opinion addressing the etiology of the Veteran’s right ear hearing loss disability first documented years after his service discharge. Since there has not been substantial compliance with the Board’s remand instructions, remand is again necessary. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 3.159(c). The Board finds that the November 2020 VA medical addendum opinion is inadequate to decide the Veteran’s claim because it does not contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). More specifically, the opinion is inadequate for the following reasons. First, the medical opinion is predicated on an inaccurate factual premise that the Veteran had normal hearing acuity at service separation. It appears that the clinician did not convert the audiometric findings as requested by Board in its prior remand because, with the conversion, the right ear hearing is not normal at the 500 and 1000 Hertz frequencies. The medical opinion, further, inaccurate reflects that hearing loss is first documented in 2003, which is contradicted by the Veteran’s treatment records. A November 1995 VA examination report shows right ear sloping to mild sensorineural hearing loss at the 3000 and 4000 Hertz frequencies. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Third, the opinion obliquely references research studies and indicates these studies show that noise exposure has an immediate effec on hearing and does not have delayed onset. It then provides three citations to include a 2005 Institute of Medicine (IOM) study, entitled “Noise and Military Service.” The opinion is inadequate as it relied heavily on the IOM report without any specific discussion of the IOM findings vis-à-vis the facts related to this Veteran. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to the veteran renders the opinion inadequate). Also, the opinion does not include any discussion or mention of qualifying or contradictory aspects within the research or literature. See generally, McCray v. Wilkie, 31 Vet. App. 243 (2019). Given the above, remand is necessary for another medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Where VA provides an examination or obtains an opinion, it must be adequate.). 2. Entitlement to a compensable rating for left ear hearing loss. The claim for entitlement to an increased rating for left ear hearing loss is inextricably intertwined with the claim for entitlement to service connection for right ear hearing loss currently on appeal. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a remand for further consideration of entitlement to an increased rating for left ear hearing loss is also warranted. The matters are REMANDED for the following action: (1) Obtain a medical opinion from an otolaryngologist as to the nature and etiology of the Veteran’s right ear hearing loss disability. The claims file along with a copy of this REMAND should be reviewed. The examination report should acknowledge that the Veteran’s 1958 service separation examination report shows audiometric findings, after conversion to ISO, in decibels as follows: [March 1958] HERTZ 500 1000 2000 3000 4000 ISO findings 25 25 10 20 15 The physician should opine on the following: (a.) Whether the Veteran’s right ear hearing loss disability at least as likely as not had its onset in service; or (b.) Whether it is at least as likely as not that hearing loss disability manifested within one year after discharge from service; or (c.) Whether it is at least as likely as not that it was noted during service with continuity of the same symptomatology since service; or (d.) Whether it is at least as likely as not that any delayed onset hearing (hearing loss not shown in service or within one year after discharge) is otherwise etiologically related to in-service noise exposure. The medical opinion should, at a minimum: (e.) Reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. hearing loss was caused by in-service noise exposure); and (iii) relevant medical evidence of record. (f.) Identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). With respect to any IOM report considered and relied upon in formatting an opinion, discuss any qualifying or contradictory aspects and why, if so, the opinion remains negative given the qualifying or contradictory aspects of the research/literature. (g.) To the extent an etiology other than noise exposure during active duty from September 1954 to May 1958 it more likely the cause of the Veteran’s right ear hearing loss disability, fully explain why this is the more likely cause. NOTE (1): An adequate opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate opinion may not be predicated solely on general medical literature without discussing the specific facts pertaining to the Veteran. (2) Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.