Citation Nr: 21014634 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-42 127 DATE: March 15, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1974 to June 1980, and also had additional Reserve service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision denied service connection for bilateral hearing loss. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in an October 2019 Joint Motion for Remand (JMR) by the parties. A November 2019 CAVC Order remanded the matter for compliance with the JMR instructions. In April 2020 and in December 2020, the matter was remanded for additional development. Entitlement to service connection for bilateral hearing loss In the October 2019 JMR, the parties agreed that the Board previously failed to address whether the Veteran experienced continuity of symptoms as a means of establishing a nexus (to service). The record contains conflicting evidence regarding continuity of symptomatology since service. For example, in a November 2014 statement, the Veteran’s spouse reported that he has complained of “ringing in his ears and not being able to hear very well” since she met him in August 1979 (during his active duty service). In a March 2020 sworn statement (received after the Board’s November 2018 denial), the Veteran reported that, “Beginning around January, 1980, I began to have trouble hearing with both of my ears.” However, on numerous postservice periodic examinations (in October 1982, November 1983, December 1984, September 1987, August 1991, August 1996, May 2000, and August 2001) he denied having hearing loss. In April 2020 the Board remanded the matter for an advisory medical opinion to ascertain the likely etiology of the Veteran’s bilateral hearing loss. The Board directed the examiner to consider the lay statements of record and a medical journal article submitted by the Veteran in March 2020 which states that data in mice studies “suggest that pathologic but sublethal changes initiated by early noise exposure render the inner ears significantly more vulnerable to aging.” In August 2020, the Veteran was afforded a VA (fee basis) hearing loss examination. The examiner provided a negative nexus (to service) opinion. [He also noted “inconsistent and exaggerated” response to puretone stimuli.] He did not, however, address the lay statements of record or the medical journal article, as directed in the Board remand. In December 2020, the Board again remanded this matter for an adequate medical opinion. In December 2020, another audiologist reviewed the record and provided a negative nexus (to service) opinion. She acknowledged the lay statements of record and the journal article submitted by the Veteran. She wrote, “While many studies have looked at possible delayed onset of noise-induced hearing loss, there is not currently any evidence in the literature that directly supports delayed onset noise-induced hearing loss in humans. A retrospective clinical study has shown that people who were previously exposed to damaging levels can show exacerbated age-related hearing loss compared to peers without noise exposure.” She acknowledged the article submitted by the Veteran but wrote that “it is premature and inappropriate to conclude that evidence in a mouse model applies directly to the same process in human ears…continued research is needed to expand upon these findings and further evaluate the implications of these results and how they might relate to the human hearing system.” She proceeded to cite to a 2006 Institute of Medicine (IOM) report, “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” that concluded “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 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.” The Board finds that remand is again necessary for an adequate advisory medical opinion. The rationale provided in support of the December 2020 opinion is inconsistent and (to an extent) speculative in nature. The examiner opined that more research is necessary to expand upon the findings of the mice study cited by the Veteran, yet, she apparently assigned more probative weight to the IOM report which states, in part, that “definitive studies to address this issue [delayed-onset noise-induced hearing loss] have not been performed.” [She also cited to a retrospective clinical study that showed that people who were previously exposed to damaging levels can [emphasis added] show exacerbated age-related hearing loss compared to peers without noise exposure.] Importantly, the CAVC has recently held in McCray v. Wilkie, 31 Vet. App. 243 (2019) that when a medical opinion relies on a medical text with apparently qualifying or contradictory statements (such as the IOM report cited by the December 2020 examiner), the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. Considering the foregoing, development for yet another (adequate) VA medical opinion is necessary. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for hearing loss. 2. After the development requested above is completed, arrange for the Veteran’s record to be returned to the December 2020 VA (fee basis) hearing loss examiner for an addendum opinion regarding the likely etiology of the Veteran’s bilateral hearing loss. [If that provider is unavailable or unable to provide the addendum opinions sought, arrange for the record to be forwarded to another audiologist for review and the opinions sought. If that occurs, and further examination of the Veteran is deemed necessary, such should be arranged.] The Veteran’s entire record (to include this remand, the December 2020 audiological examination report, the medical journal article received in March 2020, and any newly received records) must be reviewed by the examiner. The examiner should provide opinions that respond to the following: Identify the likely etiology of the Veteran’s bilateral hearing loss disability. Specifically, is it at least as likely as not (a 50% or better probability) that it arose during (was first manifested in, or is otherwise etiologically related to) his active duty service? The rationale for the opinion provided must: - Address the medical journal article submitted by the Veteran in March 2020 indicating that data in mice studies “suggest that pathologic but sublethal changes initiated by early noise exposure render the inner ears significantly more vulnerable to aging”; and, - If the examiner places any reliance on the 2006 IOM report “Noise and Military Service: Implications for Hearing Loss and Tinnitus” (discussed above), explain how the qualifying and contradictory statements in the IOM report (also discussed above) impact the examiner’s ultimate conclusion as to whether the Veteran’s hearing loss and tinnitus are related to service. All opinions must include a complete explanation of rationale, with citation to supporting factual data and medical principles. All directives above must have a response. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.