Citation Nr: 21010898 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-11 038 DATE: February 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from July 1969 to December 1973. He had additional service in the Army Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In a February 2019 decision, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Remand (Joint Motion) and vacated the February 2019 decision denying the issues listed above. In light of the Joint Motion, the Board finds that additional development is needed prior to adjudication of the claims. The Veteran contends that bilateral hearing loss and tinnitus developed as a result of military noise exposure during service. The Veteran’s military occupational specialty (MOS) was Aviation Unit Commander. In an October 2014 VA Disability Benefits Questionnaire (DBQ) and a January 2015 VA examination report, the Veteran stated that he worked as aircraft maintenance officer and helicopter pilot. During the January 2015 VA examination, he related that he was exposed to turbine engine noise and that he did not wear hearing protection. He also indicated that he was deployed to Vietnam for one year and that he was in active combat. In addition, he reported that he served in the Reserves from 1982 to 1985 and that he continued to work in aviation in aircraft maintenance for one year and that he flew between two to four weekends per month. The October 2014 VA DBQ includes diagnoses of sensorineural hearing loss and tinnitus. The January 2015 VA examination report indicates audiological test results showing a hearing loss disability for VA compensation purposes and a diagnosis of tinnitus. The question that remains is whether those conditions are related to his military service. However, for the reasons set forth below, the January 2015 VA audiological examination and January 2015 VA addendum opinion are inadequate for both the Veteran’s bilateral hearing loss and tinnitus claims, and the matters must be remanded to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, during the January 2015 VA examination, the Veteran stated that he was evaluated by a private physician approximately three years earlier. In a February 2021 statement, the Veteran’s representative alleged that reasonable efforts have not been made to obtain the Veteran’s private treatment records. The representative indicated that the Veteran was initially evaluated by Dr. D. (initials used to protect privacy) in 2011 and the records would have contained medical history relevant to a determination of whether hearing loss or tinnitus first manifested in service. Therefore, on remand, the AOJ should attempt to obtain any outstanding private treatment records relevant to the Veteran’s hearing loss and tinnitus. 1. Entitlement to service connection for bilateral hearing loss. The January 2015 VA medical opinion concludes that the Veteran’s bilateral hearing loss was not caused by or a result of military noise exposure. This opinion was based on the sole rationale that the Veteran’s hearing was normal at his separation examination and that service treatment records from the Veteran’s Reserves service also showed normal hearing. The examiner determined that the Veteran had delayed-onset hearing loss. The VA examiner then cited to the Institute of Medicine (2006) and quoted from the study. Specifically, she included the following excerpt in her opinion: There 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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. See “Noise and Military Service: Implications for Hearing Loss and Tinnitus, Institute of Medicine” (National Academies Press 2006) (IOM). The Board observes that it is a matter of public record that the Court, albeit in a non-precedential manner, has repeatedly noted that medical opinions citing this IOM report often appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See Lemmons v. McDonald, No. 15-3043, 2016 WL 6311289 (Vet. App. October 28, 2016) (non-precedential); Blackwood v. McDonald, No. 14-1148, 2015 WL 403642 (Vet. App. Jan. 29, 2015) (non-precedential). The Court has repeatedly directed attention to the fact that, although the IOM report states “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM Report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. In light of the attention to this language presenting a more complete understanding of the IOM report’s pertinent conclusions, the Board finds that a remand for an addendum to the VA examination is necessary to ensure that the medical opinion provided in this case is explained in a manner contemplating the complete pertinent findings of the IOM report. Further, as discussed in the October 2020 Joint Motion, the parties agreed that the January 2015 VA medical opinion was inadequate because the VA examiner declined to find a significant change in hearing thresholds in service or a permanent positive threshold shift at any frequency between 500 and 6000 Hertz. However, the Veteran’s July 1969 enlistment examination reflected a threshold of -5 decibels for his left ear at 6000 Hertz and his August 1973 separation examination reflected a threshold of 20 decibels for his left ear at 6000 Hertz. The January 2015 VA examiner did not address the Veteran’s threshold shift at 6000 Hertz. The Board notes that if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran’s pure tone threshold at 6,000 Hertz was recorded as being 20 decibels during his August 1973 separation examination. This threshold reflects that he experienced some degree of hearing loss at the time of his separation from service, regardless of whether his hearing loss was to a level to entitle him to VA compensation. See Hensley, 5 Vet. App. At 157. As the January 2015 VA examiner did not acknowledge or comment on the potential significance of this fact, the January 2015 opinion is insufficient. The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral hearing loss because no VA examiner has adequately opined whether the Veteran’s claimed hearing loss was incurred in service. Therefore, an addendum opinion addressing the issues raised in the Hensley decision is also required. 2. Entitlement to service connection for tinnitus. In the October 2014 VA DBQ and during the January 2015 VA examination, the Veteran reported that his tinnitus began in service and that he had ringing in his ears since active duty. The January 2015 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. This opinion was based on the rationale that the service treatment records contained no reports or complaints of tinnitus during service and that the audiometric data did not indicate acoustic damage. However, the VA examiner did not address the Veteran’s contentions that his tinnitus began during service. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding private treatment records. A specific request should be made for audiological records from Dr. D. (as identified in a February 2021 statement from the Veteran’s representative), to include a 2011 initial consultation report. 2. Return the file to an appropriate clinician, for an addendum opinion consistent with this remand, regarding the Veteran’s bilateral hearing loss and tinnitus. No additional examinations or tests are needed, unless indicated by the examiner. If additional examination or tests are performed all clinical findings should be reported in detail. The examiner must review the entire claims file, to include this remand and the comment related to the Hensley decision as well as the comments related to the Institute of Medicine Study (2006), in conjunction with authoring the addendum opinion which addresses the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The examiner is asked to address the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral hearing loss is caused by service, to include in-service noise exposure? (b.) Is it at least as likely as not that the Veteran’s bilateral hearing loss (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current tinnitus is caused by service, to include in-service noise exposure? (d.) Is it at least as likely as not that the Veteran’s tinnitus (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Board notes that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the audiologist rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.