Citation Nr: 21014044 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-45 003 DATE: March 11, 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 September 1977 to May 1986. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran withdrew his request for a Board hearing, and has not since requested another one. 38 C.F.R. § 20.704(e). The Board remanded this matter is July 2019. Unfortunately, another remand is required as the October 2019 VA opinion is inadequate for reliance of the absence of hearing loss at separation and for not adequately addressing the possibility of delayed onset hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). ((“[W]hen audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.”) In this regard, the October 2019 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 length 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, and perhaps critically, 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.” The examiner did not address this apparently contradictory statement in the report, and also relied on a 2018 publication by the American College of Occupational and Environmental Medicine that utilizes the findings from this same IOM 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 2019 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. 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. (a). In addressing this question, the examiner must discuss and accept as true: (1) that the Veteran sustained acoustic trauma in service; (2) that as an Armor Crewman/Tank Commander the Veteran was routinely exposed to main gun fire from various battle tanks without hearing protection (December 2015 VA Form 9); (3) that as a crewmember he was constantly exposed to loud and long durations of noises during operations of the Armor equipment (Id.); and (4) that since leaving the military he has not held any position that would have exposed him to such high levels of noise (Id.) and determine, based on the same, whether a nexus between the Veteran’s hearing loss and 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). The examiner should further address the theory of delayed onset hearing loss, to include the statement by the Veteran’s representative in June 2019 that an Institute of Medicine (IOM) study supports a link between noise exposure as a young adult and later findings for hearing loss. (1). The representative provided the following language from the IOM study as supporting the claim: “Young adults with a slight noise-induced high-frequency hearing loss (e.g., 15–30 dB HL at 6000 Hz), one not likely to cause much difficulty with communication if present at the time a young adult might be discharged from military service, will likely exhibit greater hearing loss as they age than young adults with normal hearing (0 dB HL) at discharge.” Please discuss this statement in relation to the Veteran’s medical history. (2). If, upon addressing the IOM study, the examiner determines it does not support a delayed onset theory, including based on the statement that it is “unlikely” that the onset of hearing loss begins years after noise exposure, the examiner must also address the statements in the study that: “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure;” that “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.” A complete rationale is requested for any opinion rendered. The Board emphasizes that the absence of a documented hearing loss disability pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. If the examiner is unable to opine as to etiology of hearing loss without resorting to speculation, please provide a basis for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.