Citation Nr: 21008195 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 12-31 689 DATE: February 12, 2021 REMAND The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1954 to November 1957. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied service connection for bilateral hearing loss and tinnitus. In August 2017, the Board denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a Joint Motion for Remand (JMR) filed by the parties, vacated the August 2017 Board decision, and remanded the case to the Board for further action consistent with the terms of the JMR. In January 2019 and July 2020, the Board again remanded the matter for evidentiary development consistent with the JMR. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as they are related to injuries during active duty service. His contentions in this case are two-fold: first, that his disabilities are related to noise exposure associated with his active duty work as an aircraft mechanic. Second, the Veteran contends that he was hit in the right ear with a rifle butt during basic training which damaged his hearing. The Veteran was afforded a VA medical examination in April 2017. After examining the Veteran and reviewing the record, the examiner concluded that it was less likely than not that the Veteran’s current hearing loss and tinnitus had been incurred in service. The examiner considered the Veteran’s reports of in-service noise exposure associated with his work as an aircraft mechanic, but noted that the service records were negative for either hearing loss or significant changes in hearing thresholds greater than normal measurement variability. The examiner noted that a 2006 Institute of Medicine study found that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner noted that the IOM panel had concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. In the July 2018 JMR, the parties agreed that remand was is warranted because the April 2017 VA examiner failed to consider whether the appellant’s bilateral hearing loss is causally related to the asserted in-service injury of being hit in the ear with a rifle butt. No other inadequacies with the medical opinion were identified. Pursuant to the Board’s remand instructions, in November 2020, a VA clinician specifically addressed the Veteran’s contentions that he sustained a right ear injury in May 1954, when he was struck with the butt of a rifle during basic training. The examiner concluded that in light of the overall record, as well as the current nature and presentation of the Veteran’s bilateral hearing loss and tinnitus, it is less likely than not that the current hearing loss and tinnitus were the result of the reported ear injury. In January 2021 written arguments, the Veteran’s representative argued that the April 2017 VA examiner failed to address the possibility of delayed-onset hearing loss. He cited multiple studies which he contended showed that delayed onset hearing loss was possible and argued that the IOM study on which the 2017 VA examiner relied had disregarded these studies. The April 2017 VA medical opinion referenced the portion of the IOM study found problematic by the Court in McCray v. Wilkie, 31 Vet. App. 243, 256 (2019). The McCray 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 relies on it. The Court held that “[i]f the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions,” or if such an issue is expressly or reasonably raised, the matter must be addressed. Id. at 257. Although the Board regrets further delay, the January 2021 written arguments from the Veteran’s representative raise a question as to the adequacy of the medical opinions in this case. Thus, a remand for an addendum opinion is necessary. The matters are REMANDED for the following action: Provide access to the Veteran’s claims file to a suitably qualified clinician to obtain an opinion as to the etiology of the Veteran’s current bilateral hearing loss and tinnitus. Schedule an examination if the clinician determines it necessary to provide an opinion. After reviewing the record, and examining the Veteran if deemed necessary, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran’s current bilateral hearing loss and tinnitus are causally related to noise exposure during his military service. In answering the above question, 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 and tinnitus are related to service. The examiner should consider the relevant evidence of record in providing the requested opinion, including the following: (1) the Veteran’s service treatment records and post-service treatment records; (2) established in-service noise exposure as an aircraft mechanic; (3) the post-service occupational and recreational noise exposure noted by the April 2017 VA examiner; (4) the studies regarding delayed-onset hearing loss cited by the Veteran’s representative in January 2021 written arguments. K. Conner Veterans Law Judge Board of Veterans’ Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.