Citation Nr: 21015289 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-27 028 DATE: March 17, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to December 1968, with additional service in the Reserves and Army National Guard of the United States. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a June 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020 and again in December 2020, the Board remanded the appeal. 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. Issues 1 & 2: The Veteran contends that he developed bilateral hearing loss and tinnitus as a result of his military occupation, a crewman on a tank, while on active duty in Germany. See Form 9 (September 2019). He detailed constantly firing cannon on maneuvers with North Atlantic Treaty Organization (NATO) allies. Id. He stated that he noticed, over time, he could not understand all the words people were saying; he had to ask to people repeat themselves; and he noticed persistent ringing. Id. He stated that, over the years, his hearing problems worsened, especially the ringing in his ears and particularly at night. Id. Despite two previous Board remands, the Board again finds that there has not been substantial compliance with its June 2020 remand instructions as the newly obtained VA addendum is inadequate. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the Veteran’s DD Form 214 reflects a military occupation of an armor crewman, SS.45 Pistol. The Veteran served as a rifleman, tank driver, tank gunner and assistant tank commander, which have been found to result in high probability of noise exposure. See Military Personnel Record (Record of Assignments) (May 2018). The Veteran’s service treatment records (STRs) dated in August 1968, show that the Veteran reported being unable to hear out of either ear, which was identified as due to cerumen, and such was removed. The Board notes that the Veteran's in-service audiograms do not show that they are based on International Standards Organization-American National Standards Institute (ISO-ANSI) units prior to October 1967. It is noted that the current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO-ANSI units. Service department audiometric tests conducted prior to October 31, 1967 were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 dB to the ASA units at 500 Hertz, 10 dB to the ASA units at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 dB to the ASA units at 4000 Hz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. Where it is necessary to facilitate data comparison for VA purposes, audiometric data originally recorded using ASA standards will be converted to ISO. Here, after conversion from ASA to ISO, the Veteran’s pre-induction physical dated in November 1966 reflects findings as follows: 25 decibels (dB) at 500 Hertz, 30 dB at 1000 through 3000 Hertz, and 25 dB at 4000 Hertz, bilaterally. The hearing acuity is outside normal limits. His enlistment physical in February 1967 reflects findings after conversion from ASA to ISO as follows: 25dB at 500 Hertz, 20dB at 1000 and 2000 Hertz, and 15 at 4000 Hertz, bilaterally. At service separation hearing was recorded as zero at each of the tested frequencies (250, 500, 1000, 2000, 4000, 8000 Hertz) for both ears. At this time, in November 1968, hearing was within normal limits for both ears. The Veteran’s Reserve physical dated in July 1983 reflects that the Veteran denied a history of hearing loss on the report of medical history. However, as associated audiogram of July 1983 reflects hearing outside normal limits at 3000 Hertz and above for the left ear. The Veteran’s Reserve physical dated in July 1985 reflects findings for hearing acuity outside the normal limits for the left ear at 3000 Hertz and above. Summary of defects noted “decreased hearing upper frequencies left ear.” The Veteran denied hearing loss on the associated report of medical history, dated in July 1985. In its previous remands, the Board found the June 2018 VA medical opinion and the June 2020 VA addendum opinion inadequate. In its June 2020 remand, the Board found the June 2018 VA medical opinion inadequate because (1) it does not directly answer the question of whether the Veteran’s current bilateral hearing loss disability and tinnitus are as likely as not related to in-service noise exposure related to duties of an armor crewman; (2) the examiner did not comment on the Veteran’s report of in-service injury or the audiometric findings outside normal limits in his STRs; and (3) implicitly relied on the absence of evidence in the Veteran’s STRs to support a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The December 2020 Board remand found the June 2020 VA addendum opinion inadequate due, in part, to its reliance on medical literature without any meaningful discussion of the literature. See McCray v. Wilkie, 31 Vet. App. 243 (2019). See also, Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). The December 2020 VA addendum opinion is inadequate. The clinician noted that he could not address potential causes of the Veteran’s hearing loss prior to 1983 because he had not examined the Veteran, and no attempt was made to recall the Veteran for examination or interview. Further, the opinion relied on the absence of in-service findings for hearing loss and tinnitus; the absence of literature supporting delayed onset hearing loss and tinnitus; and a body of literature that indicates hearing loss develops in close proximity to the noise exposure. These are inadequate bases for a negative conclusion. The December 2020 VA addendum opinion again relies on “the current accepted opinion” and “the body of literature” that purportedly support that hearing loss develops in close proximity to the noise exposure without identifying or discussing that opinion and literature. See McCray v. Wilkie, 31 Vet. App. 243 (2019); see also, Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). As stated in the prior Board remand, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of 38C.F.R. §3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993); 38 U.S.C. § 1154. The opinion does not reflect full consideration of the Veteran’s theory of causation or his reports of hearing loss symptoms. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the December 2020 addendum opinion notes the Veteran’s reports of onset of hearing loss and tinnitus earlier than 1983, but identifies them as “not reliable,” implicitly relying on the absence of documented evidence prior to 1983 to support a negative opinion. Therefore, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an otolaryngologist following telehealth or video interview of the Veteran to address Veteran’s bilateral hearing loss and tinnitus. The claims file along with a copy of this REMAND should be reviewed. (a) Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the reported symptoms based on the lay statements, medical history, and interview. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. (b) Then, opine on whether hearing loss and/or tinnitus at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, (iii) was noted during service with continuity of the same symptomatology since service, or (iv) delayed onset hearing (hearing loss not shown in service or within one year after discharge) is otherwise etiologically related to in-service noise exposure, to include his noise exposure from his military occupation as a crewman on a tank. The opinion should reflect consideration of the audiometric findings dated prior to October 31, 1967, after conversion from the ASA to ISO standard. (c) The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). (d) The opinion must reflect meaningful consideration of any relevant medical research, including that of S. Kujawa, M.D., referenced by his private physician. Note (1): An adequate medical opinion may not be predicated solely on the absence of documented in-service complaints, findings, treatment or diagnosis. Note (2): If another etiology is the more likely cause, the clinician must identify that cause and provide a complete explanation of his or her reasoning. Note (3): The clinician is not required to accept the Veteran’s theory that his military service caused his hearing loss and tinnitus, or that he had symptoms associated with the disabilities during or following military service if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation or rejects any history provided. Note (4): An adequate medical opinion may not be predicated solely on the absence of medical literature supporting the Veteran’s theory of causation; and, to the extent medical literature is relied upon to support the conclusion reached, the clinician must discuss the literature vis-à-vis facts specific to the Veteran. 2. Ensure that all VA medical opinions obtained include a complete rationale for the conclusions reached. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.