Citation Nr: 21008318 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-38 805 DATE: February 16, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1978. In July 2019, in support of this claim, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board denied this claim in October 2019, and in response the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In July 2020, the CAVC granted a Joint Motion for Remand (JMR), vacating the Board’s decision denying this claim and remanding it back to the Board for further development and readjudication pursuant to agreement in the JMR. In granting the JMR, the CAVC agreed the Board had erred in its decision in failing to adequately discuss contradictory or qualifying aspects of an Institute of Medicine (IOM) report, which a March 2016 VA compensation examiner had cited and which the Board had relied on in denying the claim, or whether the examination report is adequate given the Court’s decision in McCray v. Wilkie, 31 Vet. App. 243 (2019). The March 2016 VA examiner confirmed the Veteran has hearing loss in his right ear but concluded it is less likely than not the result of his military service. This VA examiner reasoned that the Veteran’s separation examination documented normal hearing acuity in his right ear at all frequencies with no significant positive threshold shifts when compared to the findings during his enlistment examination. This VA examiner also pointed out that a 2005 IOM study had investigated the notion of “delayed-onset” hearing loss following hazardous noise exposure and had found insufficient evidence to support this proposition. Partly relying on that VA examiner’s March 2016 opinion, the Board issued a decision in October 2019 denying this claim since the earliest reported clinical evidence of right ear hearing loss disability was not until 2011, so not until more than three decades after conclusion of the Veteran’s service. The Board pointed out that several hearing evaluations (audiograms) just prior to and during his service – initially in May 1974 and later in August 1976, October 1976, November 1977, and in April 1978 in anticipation of separating from service, did not contain any indication of hearing loss in his right ear in any of the frequencies tested. In McCray, however, the Court highlighted the apparently contradictory findings regarding “delayed-onset” hearing loss in the IOM report. Specifically, the IOM report concludes, in part, that there is not sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicates “[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.” The Board, consequently, is directing further development of this claim to address the holdings in McCray.   Accordingly, this claim is REMANDED for the following actions: Obtain supplemental comment (an addendum opinion) concerning the nature and etiology of the Veteran’s right ear hearing loss. A complete copy of this remand, the JMR, and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and provide explanation for his/her findings. Based on this review, the examiner is specifically asked to answer the following question: Is it as least as likely as not (a 50 percent or greater probability) the Veteran’s right ear hearing loss began during his service from June 1974 to June 1978, or within a year of his discharge – so by June 1979 since it is mixed (so partly sensorineural and partly conductive), or is otherwise related or attributable to noise exposure and consequent injury (acoustic trauma) during his service, even if not first clinically diagnosed until 2011 or thereabouts? If, as the prior March 2016 VA compensation examiner concluded, there is no such thing as “delayed-onset” hearing loss given the results of the IOM study, then this supplemental examiner must provide more explanation for this conclusion, including, as an example, specifying what extent of change in threshold levels in service would be considered significant. Additionally, the examiner must address the significance, if any, of the seemingly contradictory findings of the IOM study noting “[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.” The examiner is also advised that the Veteran is competent to report noise exposure and hearing problems in service, and since (as is his wife), and his symptoms and history and such reports must be specifically considered in formulating responses. If the examiner rejects the Veteran's reports, the examiner must provide reason for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.