Citation Nr: 21008836 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-13 341 DATE: February 18, 2021 REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 to June 1966 in the United States Army. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020 and in September 2020, the Board remanded the claim for further development. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current bilateral hearing loss disability is due to in-service acoustic trauma. Specifically, the Veteran argues that his hearing loss stems from his duties as a paratrooper in which he was exposed to loud noises from aircraft, gun fire, and artillery fire without hearing protection. See Form 9 (March 2018). He has not argued in-service onset of hearing loss; but rather that his post service hearing loss is etiologically related to his in-service noise exposure. The Veteran’s representative argues that service connection for bilateral hearing loss is warranted based on in-service noise exposure and certain medical literature indicating an acceleration of hearing loss where there was prior auditory damage. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality.” See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). Here, the representative provided a hyperlink to the literature referenced, but he did not provide any accompanying medical opinion. Further, it is noted that the medical literature referenced is not constructively before the Board simply by virtue of the representative providing the Board a hyperlink. Indeed, “medical literature” is not veteran-specific unlike VA treatment records or relevant non-VA records reasonably identified. It is noted that, although the Board may be generally aware of a study, this does not place it constructively before the Board and does not trigger alone VA’s duty to assist by obtaining a supplemental opinion. See generally, Euzebio v. Wilkie, 31 Vet. App. 394 (2019), citing Monzingo v Shinseki, 26 Vet. App. 97, 102 (2012). In January 2020 and in September 2020, the Board remanded the claim for further development. To ensure that VA has met its duty to assist, remand is again necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA medical opinions (VAMOs), including the recent December 2020 VAMO, reflects, in part, the conclusion that the Veteran’s hearing loss disability was less likely than not (less than 50 percent probability) caused by the Veteran’s in-service noise exposure. The rationale was predicated on normal audiometric findings at service entry and separation along with the absence of “documentation of any hearing loss for many years…” The opinion does not explain why these data points support the conclusion reached. It is also noted that a 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. See Stefl v. Nicholson, 21Vet. App.102, 124-25. A “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Further, although the December 2020 VAMO indicates that the Veteran’s hearing loss is at least as likely as not due to presbycusis given his age and “potential for noise exposure in civilian life,” this conclusion along with the supporting rationale does not establish that presbycusis is the more likely cause of the Veteran’s hearing loss or rule out in-service noise exposure as sharing in the cause of his hearing loss disability first documented post service. Also, first, this opinion ignores the Veteran’s report that he did not have noise exposure post service. See NOD (March 2018). Second, the opinion assumes that there can be only one cause of the Veteran’s hearing loss disability, and that his in-service noise exposure could not be one of the causes. See, e.g., Taylor v. McDonald, 27 Vet. App. 158, 166 (2014) (faulting the Board, with respect to a claim that a current disability was caused by in-service exposure to Agent Orange, for relying on a medical opinion suggesting that the disability was related to an intervening post-service infection, where the opinion did not discuss the possibility of Agent Orange as a contributory cause). In sum, the VAMO does not fully address whether any “delayed onset” hearing loss is at least as likely as not due to or the result of the Veteran’s in-service noise exposure. The absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3Vet. App.87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of 38C.F.R. §3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5Vet. App.155 (1993). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from an otolaryngologist. The claims file to include a copy of this REMAND should be reviewed. The physician should opine on the following: Whether the Veteran’s current hearing loss disability is at least as likely as not (50 percent or greater probability) due to or the result of conceded in-service noise exposure. A complete rationale is required that identifies and explains the relevance or significance, as appropriate, of any history, clinical findings, science, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Consider the Veteran’s report that he did not have any post service noise exposure. Note (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for hearing loss disability. Note (2): If another etiology is the more likely cause, the physician must provide a complete explanation of his or her reasoning. Note (3): General articles, such as statistical data and medical treatise evidence, can be a factor, but an opinion must reflect facts specific to the Veteran when discussing such evidence. (Continued on next page) 2. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.