Citation Nr: 21009254 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-09 258 DATE: February 22, 2021 REMAND Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from July 1966 to July 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in June 2019, the Board denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2020, the Court issued a Joint Motion for Remand (JMR) remanding the June 2019 Board decision. The May 2020 JMR determined that Board erred by failing to ensure that the duty to assist had been satisfied when it relied on an inadequate VA examination, and by failing to provide an adequate statement of reasons or bases. See 38 U.S.C. § 5103A; Gilbert v. Derwinski, 1 Vet. App. 49(1990); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The May 2020 JMR stated that the examination was inadequate because the examiner’s negative nexus opinion was based on her finding that there were no permanent threshold shifts in service, noting that Veteran’s hearing was normal at both his entrance and separation examinations. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993) (a veteran may establish direct service connection for a hearing disability, manifesting years after discharge, if evidence shows the current hearing loss is causally related to injury or disease suffered in service). Moreover, the examiners use of the 2006 Institute of Medicine report in the decision was improper because the examiner did not apply it to the facts of the particular case. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (finding that the Board clearly erred in relying on a medical opinion in which the audiologist “did not provide any rationale . . . that was specific to [the veteran’s] particular medical condition and circumstances”). In September 2020, the Board granted the issue of entitlement to service connection for tinnitus and remanded the issue of entitlement to service connection for bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) to ensure compliance with the May 2020 JMR. In compliance with the May 2020 JMR, the Veteran was provided new VA examination to determine the etiology of the Veteran’s bilateral hearing loss in compliance with the requirements of Hensley and Bailey. A November 2020 VA examiner provided an extensive opinion. In one part of the opinion, the examiner reported comparing the audiometric results at entrance and separation – referencing the appropriate conversion from American Standards Associates (ASA) to International Standards Organization/American National Standards Institute (ISO/ANSI) – and commenting that these results did not show “a significant threshold shift beyond normal measurement variability.” However, the examiner did not provide the actual numerical conversions or explain what would constitute a significant threshold shift. This lack of definitional detail frustrates the ability of the claimant to determine the adequacy of the opinion. As such, the Board must return the examination report for clarification. Accordingly, this matter is REMANDED for the following: Obtain an addendum opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran’s bilateral hearing loss. The claims file must be made available to be reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss had its onset in service or is otherwise etiologically related to service. The Veteran had an in-service audiological evaluation during service in April 1966 enlistment examination and June 1968 separation examination. It is unclear whether the June 1968 audiological evaluation was recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, the examiner is asked to convert the recorded metrics under both standards, record these conversions in the examination report, and rely on the unit measurements most favorable to the Veteran’s appeal. The examiner must discuss the documented decrease in the Veteran’s audiological test results between the entrance and separation examination and explain why the Veteran’s hearing loss was not otherwise related to his noise exposure during service. The examiner should specifically explain the standard for what is considered a permanent positive threshold shift (worse than reference threshold) which is considered greater than normal measurement variability, and whether the Veteran demonstrated a permanent threshold shift indicative of acoustic trauma and/or hearing loss during service. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.