Citation Nr: 21008907 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-09 001 DATE: February 18, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  When this matter initially came before the Board of Veterans Appeals (Board) in a May 2019 decision, the Board granted service connection for tinnitus but denied service connection for bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court granted a March 2020 joint motion for partial remand (JMPR), vacating only that part of the May 2019 Board decision that denied entitlement to service connection for bilateral hearing loss. The matter returned to the Board and in August 2020 the Board remanded the claim for an addendum opinion with the understanding that audiometric testing that did not demonstrate hearing loss in service was not fatal to the claim, and with the direction to address the Veteran’s lay statement within his July 2015 application for disability compensation that his hearing loss began in service and had continued since service. The Veteran asserts that his bilateral hearing loss is related to his exposure to military noise while in service, including rifles, grenades, and mortar rounds. See March 2016 Statement in Support of Claim; March 2017 VA Form 9. The Board notes the Veteran is currently diagnosed with bilateral sensorineural hearing loss based on the October 2015 VA audiogram findings. Furthermore, military noise exposure was conceded in the May 2019 Board decision. However, the Board must remand the claim as the VA medical opinion did not comply with the Board’s remand directives and is otherwise inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 147 (1999). In the November 2020 VA addendum, the VA examiner opined that the current bilateral hearing loss was less likely than not related to military service. The examiner stated that the Veteran’s lay statements regarding his hearing loss were neither fatal nor non-fatal to the claim, as hearing loss was not a condition capable of self-diagnosis; objective measures of hearing sensitivity supersede speculative diagnoses by the Veteran; and the correlation of noise exposure to hearing loss was not evidence of causation, as the hearing loss could have occurred during a period of military service which was not related to military activity. Further, the examiner noted the January 1971 separation medical examination showed normal hearing in the right ear, which was relevant because a 2006 Institute of Medicine study found that the most profound auditory effects of noise exposure occurred immediately following the exposure, suggesting that if caused by military noise exposure, hearing loss would have had an onset during service and would have been present upon separation. The Board finds the November 2020 addendum is inadequate for several reasons. First, examiner’s opinion does not comply with the August 2020 Board remand directives. The examiner did not address the Veteran’s lay statements regarding noise exposure in service and continuity of his symptoms since service. Instead, the examiner relied on the absence of records of hearing loss in service to support the negative opinion. See Stegall v. West, 11 Vet. App. 268 (1998); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Second, the examiner’s opinion is based on an inaccurate factual premise, specifically that the hearing loss must be related to a specific military activity rather than to have had its onset during a period of active service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the November 2020 VA examiner indicated that the medical evidence and current science found the delayed onset of noise-induced hearing loss unlikely and seemingly referenced an excerpt that appears to have been taken from a 2006 IOM study. However, the Board notes that, in McCray v. Wilkie, 31 Vet. App. 243 (2019), the United States Court of Appeals for Veterans Claims (Court) found that the 2006 IOM study contained contradictory findings. The study found that, “based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss.” However, the IOM report also indicated that “[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 November 2020 addendum did not address the more favorable aspects of the study. For these reasons, a new VA medical opinion with regard to the etiology of the Veteran’s hearing loss is needed. The matters are REMANDED for the following actions: 1. Forward the Veteran’s claim file to an audiologist for the purpose of obtaining another medical opinion as to the etiology of the Veteran’s current bilateral hearing loss disability. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current bilateral hearing loss disability (i) began during service; (ii) manifested to a compensable degree within one year of separation from service; or (iii) was noted in service with continuity of symptomatology since service. The examiner’s attention is drawn to the following: *The Veteran’s in-service noise exposure is recognized. *The examiner must specifically address the Veteran’s lay statements that his bilateral hearing loss symptoms began in service and continued to the present. See July 2015 claim. If still relying on the 2006 IOM study, the examiner is asked to state why the conclusions of that study apply to this Veteran, given its contradictory aspects noted by the Court in McCray v. Wilkie, 31 Vet. App. 243 (2019). A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, she should expressly indicate the same and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. (Continued on the next page)   2. Thereafter, readjudicate the remanded claim. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.