Citation Nr: 21011164 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-32 289A DATE: March 1, 2021 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to December 1971, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. The Veteran seeks service connection for bilateral hearing loss. He asserts that he sustained acoustic trauma while serving in combat. Here, the JMR indicated that the Board provided an inadequate explanation for its reliance on the December 2015 VA examination report. Specifically, the December 2015 VA examiner opined, “Cannot determine a medical opinion regarding the etiology of the Veteran’s right ear hearing loss without resorting to speculation.” The examiner explained, “Since there is a significant difference between ears, this asymmetry should be looked at further in regards to etiology.” However, there was no indication that any additional testing was conducted or that the “asymmetry” in the Veteran’s ears was further examined. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (“once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided”). Therefore, the JMR indicated that a remand is warranted for a new examination or medical opinion that addresses the medical “asymmetry” in the Veteran’s ears and provides a rationale that allows for a fully-informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail” to allow for a fully-informed decision). Second, the JMR indicated that, in rendering a negative nexus opinion for the left ear, the VA examiner based her negative opinion on the “anatomical and physiological data available on the recovery process following noise exposure,” but did not adequately address the Veteran’s specific noise exposure and recovery process. Furthermore, to the extent that the VA examiner relied upon a 2005 Institute of Medicine (IOM) report that was negatively addressed by this Court in McCray, upon remand the Board must ensure that a medical opinion is obtained that contains a rationale that is adequate for rating purposes. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (“If the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not.”). This recent Court decision highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. Specifically, the VA medical opinion in McCray noted that the IOM report concluded, in part, that there is 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.” Any future opinion predicated on the IOM reports’ findings regarding delayed onset hearing loss must address these inconsistencies. Id. Therefore, a remand is also warranted for left ear hearing loss for an opinion that is adequate for rating purposes. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the onset of his bilateral hearing loss symptoms, to include whether he began to experience diminished hearing or tinnitus during service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran a VA examination to determine the onset and etiology of his bilateral hearing loss. The examiner must opine as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss was caused by or related to service, to specifically include noise exposure during combat in service. (a.) The examiner must address whether the 15-decibel difference at 3000 and 4000 Hertz in the right ear between the March 1968 enlistment audiogram and the December 1971 separation audiogram and the 10-decibel difference at 1000, 3000, and 4000 Hertz in the left ear between the March 1968 enlistment audiogram and the December 1971 separation audiogram was indicative of a significant permanent threshold shift as those terms were used in the December 2015 VA examination and August 2019 Board decision. (b.) In formulating a medical opinion, if relying to any extent upon the IOM study noted above, the examiner must (a) identify the medical text’s qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran’s case as to the question of whether delayed onset bilateral hearing loss is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. (c.) Please also discuss the impact of the Veteran's in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his bilateral hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service noise exposure. (d.) In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.