Citation Nr: 21015982 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-35 592 DATE: March 18, 2021 REMANDED Entitlement to service connection for the Veteran's bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to January 1967. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a n April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for the Veteran's bilateral hearing loss is remanded. In April 2017 and October 2018, the Board remanded this case for new VA examinations. The case has now returned to the Board for appellate review and, although it again regrets further delay, the Board finds that additional remand is required. At the outset, the Board acknowledges that two positive opinions issued by a private audiologist are of record. Unfortunately, the private audiologist did not explain why they concluded that the Veteran’s bilateral hearing loss was related to his in-service noise exposure and the opinions do not address the conflicting medical treatises at issue in this case. See Stefl v. Nicholson, 21 Vet. App.120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Now turning to the VA examinations of record, in the April 2017 remand, the Board indicated that April 2010 VA medical opinion was inadequate because it did not address Dr. Sharon G. Kujawa’s research, which provided a medical basis for delayed onset of noise-induced hearing loss. Specifically, the April 2010 VA examiner opined that the Veteran’s bilateral hearing loss was not related to service because there was no significant shift in thresholds in the Veteran’s hearing between the Veteran’s entrance and separation examinations. In support of this finding, the April 2010 VA examiner cited to the 2005 Institute of Medicine (IOM) report, which revealed that there was no scientific basis for delayed onset of hearing loss. Accordingly, the Board remanded for a new VA examination. Additionally, the clinician was to discuss: (1) the Veteran's in-service exposure, while working on the flight line without hearing protection, to the noise of aircraft engines, including during takeoffs and landings; (2) his report that his hearing has been gradually worsening for more than 20 years; and (3) the significance of four medical research articles authored by Dr. Kujawa. Subsequently, in October 2018, the case returned to the Board and the Board indicated that April 2017 medical opinion and May 2017 addendum opinion were inadequate as they did not substantially comply with prior remand. Specifically, the April 2017 examiner opined that it is not as least as likely as not that the Veteran’s hearing loss is a result of noise exposure while in the service. The April 2017 examiner cited to the 2005 IOM report to support her rationale and acknowledged the studies of Dr. Kujawa. However, in regard to Dr. Kujawa’s research, the April 2017 examiner stated that “the studies by Dr. Kujawa cannot be discussed without resorting to speculation due to lack of direct knowledge surrounding these specific studies.” Accordingly, the Board remanded service connection for the Veteran’s bilateral hearing loss for a new VA examination and again instructed the examiner to address Dr. Kujawa’s research. Following the October 2018 remand, the requested opinion was provided in June 2019. However, the Board finds this opinion to be inadequate as well because it did not address Dr. Kujawa’s research as directed. The June 2019 examiner also relied on the 2005 IOM report. Since a remand confers on the claimant, as a matter of law, the right to compliance with the remand order, the Board must remand the Veteran’s claim. See Stegall v. West, 11 Vet. App.268 (1998). As the case currently stands, the Board is unable to adjudicate the Veteran’s claim for service connection without clarification as to whether Dr. Kujawa’s research applies to the Veteran’s delayed onset of noise-induced hearing loss. Furthermore, to the extent that the VA examiners relied upon a 2005 IOM report that was negatively addressed by the United States Court of Appeals for Veterans Claims (Court) in McCray, upon remand the Board must ensure that a medical opinion is obtained that contains a rationale that is adequate. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019). Here, the April 2017 and June 2019 examiners acknowledged that the 2005 IOM did not specifically rule out delayed onset of noise-induced hearing loss but stated that current science has not shown it conclusively. The examiners reasoned that the Veteran’s hearing loss occurred by presbycusis and/or contributory medical history. However, neither examiner addressed the Veteran’s contributory medical history that led to his hearing loss or adequately explained why it is related to the Veteran’s age. Due to these deficiencies, the Board finds that additional clarification is needed prior to adjudication of this issue on its merits. Under 38 U.S.C. § 5109(a), VA may obtain an advisory medical opinion from an independent medical expert from outside the Department based upon the medical complexity or controversy of a particular case. Here, remand is warranted for the provision of an additional medical opinion from outside the Department pursuant to 38 U.S.C. § 5109 due to the unique complexity of the issue of whether the Veteran is entitled to service connection for his hearing loss disability. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his bilateral hearing loss disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding entitlement to service connection for the Veteran’s hearing loss disability. 2. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran’s claims file to a non-VA, independent medical expert in the field of audiology. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. 3. The expert should then address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss is related to his period of active duty service, to include his conceded in-service acoustic trauma, or that a hearing loss disability manifested within a year of his separation from service? Please explain why or why not, keeping in mind that the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find that there is no nexus to service. Rather, the salient question is whether any incident of service, including the Veteran's conceded noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after his discharge from service. (b.) In issuing your opinion, please specifically discuss (1) the Veteran's in-service exposure, while working on the flight line without hearing protection, to the noise of aircraft engines, including during takeoffs and landings; (2) his report that his hearing has been gradually worsening for more than 20 years; and (3) the significance of the line of research conducted by Dr. Kujawa, including the below: Sharon G. Kujawa & M. Charles Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, 26(7) J. Neurosci. 2115-2123 (2006). Sharon G. Kujawa & M. Charles Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration After "Temporary" Noise-Induced Hearing Loss, 29(45) J. Neurosci. 14077-85 (2009). Harrison W. Lin, Adam C. Furman, Sharon G. Kujawa & M. Charles Liberman, Primary Neural Degeneration in the Guinea Pig Cochlea After Reversible Noise-Induced Threshold Shift, 12 J. Ass'n Res. Otolaryngol. 605-616 (2011). Adam C. Furman, Sharon G. Kujawa & M. Charles Liberman, Noise-Induced Cochlear Neuropathy is Selective for Fibers with Low Spontaneous Rates, 110 J. Neurophysiol. 577-586 (2013). (c.) Please also discuss the impact of the Veteran's in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his bilateral hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service noise exposure. (d.) In formulating a medical opinion, if the expert finds that the Veteran’s hearing loss is related to presbycusis and/or contributory medical history, the examiner must adequately explain why. If the Veteran has contributory medical history that contributed to his hearing loss, please identify the Veteran’s relevant contributory medical history. (e.) In formulating a medical opinion, if relying to any extent upon the 2005 IOM study noted above, the examiner must (a) identify the medical text’s qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran’s case as to the question of whether delayed onset bilateral hearing loss is as likely as not etiologically related to in-service noise exposure. A complete rationale is required. A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster 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.