Citation Nr: 21009916 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-35 440 DATE: February 23, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1959 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision. The Board remanded this matter twice, in June 2020 and October 2020, for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss, which he contends was incurred in service due to military noise exposure. The Veteran asserts that he was regularly exposed to hazardous noise during service where he was on the flight line close to jet engines as an aircraft mechanic. The Veteran was afforded a VA audiology examination in March 2018. Upon examination, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, finding that the Veteran’s audiometric thresholds were within normal limits on separation examination, with no findings related to shifts in audiometric thresholds, and therefore there was no evidence that his bilateral hearing loss was related to noise exposure in service. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Furthermore, the examiner did not convert the Veteran’s audiometric test results from the standards set by the American Standards Association (ASA) to those set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In addition, the examiner failed to discuss the Veteran’s exposure on the flight line to jet engines as a jet aircraft mechanic, and to take a history of the Veteran’s post service noise exposure. For those reasons, in a June 2020 remand the Board determined that additional development of the Veteran's claim was necessary prior to appellate review. Following the remand, in June 2020, the Regional Office (RO) obtained an addendum medical opinion from the same VA audiologist who provided the March 2018 medical opinion. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure. The examiner relied on the fact that the evidence did not show findings related to shifts in audiometric thresholds from enlistment through separation. However, the VA examiner did not specifically discuss those audiometric testing results. Further, the Veteran did not undergo any audiometric testing, other than a whisper test, at his December 1959 enlistment examination. Second, the VA examiner, citing the 2006 report of the Institute of Medicine, National Academy of Sciences (IOM), found that there was no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event. Nevertheless, the VA examiner did not explain what other event, injury, or disease could have caused the Veteran’s current hearing loss. The VA examiner again relied on the finding that the Veteran’s hearing loss was within normal limits upon separation, a finding which was previously found in the June 2020 Board remand to be inadequate. Moreover, the Board notes that the 2006 IOM study is outdated and no longer reflects the current scientific knowledge of the medical community with regard to the possibility of delayed-onset hearing loss. Additionally, the Veteran, though his attorney, raised the theory that his service-connected tinnitus may have been caused his current bilateral hearing loss. The record did not include an opinion addressing whether the Veteran’s bilateral hearing loss was caused or aggravated by his service-connected tinnitus. As such, the examination was found to be inadequate for adjudicative purposes and the Board remanded the Veteran's claim in October 2020 in order to obtain an addendum medical opinion. VA obtained another addendum opinion concerning the etiology of the Veteran's hearing loss in November 2020 from the same VA audiologist who provided the March 2018 and June 2020 medical opinions. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, is less likely as not caused by his service-connected tinnitus, and is less likely as not aggravated beyond its natural progression by his service-connected tinnitus. However, review of the opinion reveals that the examiner simply "cut and paste" his prior medical opinion and did not respond to the Board's remand directives. As such, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain a medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following action: Forward the Veteran's claims file to a VA audiologist WHO HAS NOT PREVIOUSLY EXAMINED HIM to provide an addendum medical opinion addressing the nature and etiology of the Veteran's bilateral hearing loss, to include as secondary to his service-connected tinnitus. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this (and the prior) REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a.) Is it at least as likely as not that the Veteran’s bilateral hearing loss is related to his in-service noise exposure, to include his exposure to jet engines on the flight line as an aircraft mechanic? (b.) Is it at least as likely as not that the Veteran’s bilateral hearing loss was caused by his service-connected tinnitus? (c.) Is it at least as likely as not that the Veteran’s bilateral hearing loss was aggravated beyond its natural progression by his service-connected tinnitus? The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the above opinions, the examiner must consider the Veteran’s statements regarding his military noise exposure and any post-service occupational or recreational noise exposure, or lack thereof. The examiner is further reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay statements as to onset and continuity of symptoms must be considered and weighed in making the determination as to whether a nexus exists between the Veteran’s hearing loss disability and his military service. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. (Continued on the next page)   The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.