Citation Nr: 21011516 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-06 567 DATE: March 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1967 to August 1969, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in June 2015 and April 2020. 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the additional delay, a remand is again required. In this regard, the October 2020 VA examiner relied on a 2005 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus to support his opinion. Specifically, the report notes that “[t]he evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the lengthy of recovery, whether partial or completed, related to the level, duration, and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days.” However, the report also states 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.” A 2018 publication by American College of Occupational and Environmental Medicine cited by the examiner also relies on this report. The United States Court of Appeals for Veterans Claims (Court) held that the Board must address a medical text that serves as the basis for a medical opinion which contains apparent qualifiers or contradictions to explain whether those aspects of the medical text diminish the probative value of the medical opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court provided that the Board may seek clarification from the medical professional if assistance in understanding or interpreting the underlying the medical text evidence is required. See id. Indeed, the medical study relied on here is the same one discussed by the Court in McCray. Thus, if reliance on the IOM report is continued, then clarification is required as the report contains contradicting information on how there is insufficient evidence from definitive studies to support the lack of a causal link between one’s delayed hearing loss and prior noise exposure. The matter is REMANDED for the following action: Refer the claims file to the October 2020 VA examiner for preparation of an addendum opinion as to the etiology of the Veteran’s bilateral hearing loss. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. (a). Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset in or is otherwise related to service, to include as a result of conceded acoustic trauma therein. In addressing this question, the examiner must discuss and accept as true: (1) that the Veteran sustained acoustic trauma in service; (2) the Veteran’s statements and testimony regarding noise exposure from heavy machinery, artillery, and small arms fire while stationed in Vietnam as a combat engineer without hearing protection, and (3) his assertion of in-service onset of hearing loss in 1969 and continuous hearing loss symptomatology since that time (see February 2014 VA Form 9 and February 2015 Board Hearing Transcript), and determine, based on the same, whether a nexus to service is “medically plausible,”  while considering the fact that tinnitus has been attributed to service and that “an associated hearing loss is usually present” with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. (b). Also, please consider and discuss the medical article cited by the Veteran’s representative in February 2021, “Aging after noise exposure: acceleration of cochlear synaptopathy in “recovered” ears.” (c). If the medical professional continues to rely on the IOM report regarding delayed onset of hearing loss after noise exposure as rationale for any opinion, then the examiner must address and explain the following citation from the IOM report that supports a delayed onset theory: “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” and that “definitive studies to address this issue have not been performed.” (d). Also, please note that the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.