Citation Nr: 21011775 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-09 518 DATE: March 2, 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 served on active duty in the United States Army from January 1968 to January 1970. The bilateral hearing loss claim was previously before the Board in November 2018 at which time it was denied. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which issued a Memorandum Decision in June 2020 setting aside the Board decision and remanding the claim. The Court also remanded a claim for service connection for tinnitus as reasonably raised along with the initial claim for service connection for bilateral hearing loss. Based on the guidance in the Memorandum Decision and subsequently received evidence, the Board finds that remand is needed before the Board may proceed to consider the claims. 1. Entitlement to service connection for bilateral hearing loss is remanded. Noise exposure in service has been conceded and current audiological testing has confirmed that the Veteran has bilateral hearing loss for VA purposes. As such, the only question to be determined is whether the Veteran’s in-service noise exposure has caused his current hearing loss. The first indication in the claims file of hearing complaints was a notation in May 2009 that the Veteran told VA clinicians that his hearing was decreased in both ears. He reported in subsequent lay statements that he felt that his in-service noise exposure with little to no hearing protection resulted in his current hearing loss. He also stated that his post-service occupation involved no noise exposure. A VA opinion was obtained in September 2014 which found that current hearing loss was not related to service, however, it was based on general medical principals and not based on an examination of the Veteran. An examination was conducted in October 2014. The examiner noted the Veteran’s exposure to engine noise in service while working in supply and transportation and his post-service lack of occupational and recreational noise exposure. She determined that the Veteran’s hearing loss was less likely than not related to service. In support, she stated that hearing was normal at enlistment and separation without indication of auditory threshold shift during military service. Exposure to either impulse sounds or continuous exposure can cause temporary threshold shift, which usually abates in 16 to 48 hours after the exposure. Impulse noise may also result in immediate and permanent hearing loss. Continuous and repeated exposure to loud noise may also cause permanent hearing loss. Since the damage from noise exposure occurs at the time of the exposure, a normal audiogram subsequent to the noise exposure would verify that the hearing recovered without a permanent threshold shift (hearing loss). In an October 2018 Informal Hearing Presentation (IHP), the Veteran’s representative cited a study, “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss,” Kujawa, Sharon, and Liberman, M.C., 29(45) J. Neuroscience 14077, 14078-79 (2009) (hereinafter, Kujawa study). He stated that the study showed that despite a temporary return to normal hearing measurements after noise exposure, there is primary degeneration of cochlear neurons after noise exposure. Therefore, normal hearing thresholds may mask neural degeneration. The representative interpreted this to mean that hearing damage resulting in degeneration years later may occur, despite “normal” hearing shortly post-exposure. Subsequent to the Court’s decision, the Veteran submitted a letter from a private audiologist and a copy of the Kujawa study in July 2020. The private audiologist discussed the Veteran’s history as reported by him of his in-service noise exposure and post-service experience. She stated that upon reading the “facts of the original claim and the appeal,” she felt that it was very possible that the Veteran’s hearing loss was caused as a result of his military service. She asked that the Kujawa study be reviewed and stated that it discussed the possibilities and effects that noise exposure could cause hearing loss but that it can recover to indicate “safe” exposure (no shift in threshold) but that the effects of noise exposure can be delayed. As noted by the Secretary in the brief submitted to the Court, the Kujawa study noted that “noise-induced hearing loss of spiral ganglion cells (SGSc), the cell bodies of the cochlear afferent neurons contacting these hair cells, is delayed by months and can progress for years.” Therefore, it is unclear whether there is support for a conclusion that an onset of a hearing shift outside of normal variability would occur years after noise exposure, such as suggested by the IHP. Based on the foregoing, the Board finds that a new medical opinion is needed to reconcile the evidence of record. The Veteran has submitted a medical treatise that contains findings that may potentially support the claimant, as well as others that may not. The Board finds that a medical opinion is needed to determine whether the Kujawa study is pertinent to the Veteran’s particular circumstances and whether it supports his claim. See McCray v. Wilkie, 31 Vet. App. 243, 257-58 (2019); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Although the July 2020 private letter stated that the Kujawa study should be reviewed and noted one interpretation of the study, the clinician did not apply the findings in the study to the Veteran’s particular medical history and circumstances, particularly to his in-service audiological findings. Articles and treatises tend to be general in nature and to not relate to the specific facts in a given veteran’s claim. The Court has held that a medical article or treatise can provide important support when combined with an opinion of a medical professional regarding a claim for compensation. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, because the opinion provided in the July 2020 letter does not use the study to discuss and uphold the facts in the Veteran’s particular circumstances, it cannot form the basis of an award of service connection. The Court indicated that because the Veteran’s pre-induction and induction audiograms were conducted prior to 1969, the results may need to be converted from American Standards Association (ASA) units to the current testing standards according to the International Standards Organization/American National Standards Institute (ISO/ANSI). As such, the new opinion should address the pre-induction, induction, and separation audiograms with respect to the appropriate standards. 2. Entitlement to service connection for tinnitus is remanded. The Court determined that because the Veteran’s claim for service connection for bilateral hearing loss was submitted prior to the time that VA required claims to be submitted on formal claims forms and because he has reported tinnitus, a claim for service connection for tinnitus was reasonably raised by the record. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff’d sub nom, Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As such, the claim is included herein. At the October 2014 examination, the Veteran reported that he experienced tinnitus that began “a few years ago.” The examiner determined that tinnitus was a known symptom associated with hearing loss. As such, the Veteran’s tinnitus was at least as likely as not associated with his hearing loss which was determined not to be related to service. The July 2020 private letter stated it was very possible that the Veteran’s tinnitus was caused as a result of his military service. However, an adequate rationale for this opinion was not provided. The Board finds that a new medical opinion is needed to determine whether the Veteran’s tinnitus is the result of his military service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA clinician. The clinician is asked to review the claims file and note that the case review took place. (a.) The clinician is asked to determine whether the Veteran’s bilateral hearing loss is at least as likely as not (probability of 50 percent or greater) etiologically related to his active service, to include conceded noise exposure during service. The clinician should convert in-service audiological findings from ASA to ISO/ANSI as needed. The clinician should discuss any threshold shifts in the Veteran’s puretone thresholds from entrance to separation and specifically note whether such shifts are outside normal measurement variability and whether they indicate evidence of in-service hearing loss. (b.) The clinician is asked to determine whether the Veteran’s tinnitus is at least as likely as not (probability of 50 percent or greater) etiologically related to his active service, to include conceded noise exposure during service. (c.) The clinician should focus specifically on whether the noise exposure in service caused any current hearing impairment. Facts and medical principles relied upon to arrive at an opinion should be set forth, including any principles relating to the possibility of a delayed onset of loss of acuity due to noise exposure in service. To that end, language in the Kujawa report, “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss,” referenced by the Veteran should specifically be discussed as to how the study’s findings relate to the Veteran’s specific circumstances and medical history. 2. After the above development, and any other indicated development, has been completed, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate 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.