Citation Nr: 21021240 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-19 271 DATE: April 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to March 1972 with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This issue was most recently before the Board in November 2020, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss is remanded. A June 2020 Board decision found the July 2019 VA examination to be inadequate, as the rationale was entirely based on the finding that there was no noise injury in service, which is contrary to the Board’s findings in a July 2018 decision. Specifically, the Board accepted the that the Veteran was exposed to acoustic trauma in service, to include an incident during field training wherein an explosive device went off near the Veteran’s head. The Board remanded this claim and directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion to determine whether the Veteran’s acoustic trauma in service is related to his current bilateral hearing loss. The examiner was directed to accept that the Veteran has a current bilateral hearing loss disability and that he was exposed to acoustic trauma while in service. 06/30/2020, BVA Decision. And, most recently, a November 2020 Board decision found the July 2020 VA examination to be incomplete, as the rationale relied on the Veteran’s normal hearing at separation and a 2008 Institute of Medicine (IOM) study regarding delayed onset of hearing loss without adequately addressing the Veteran’s reports of hearing loss onset during and since service, as well as his reports of worse hearing in his left ear from an explosion and exposure to gunfire during service. The Board again remanded the claim and directed the AOJ to obtain an addendum opinion to determine whether the Veteran’s hearing loss is related to his active service and to also reconcile how the contradictory language in the IOM report relate to the Veteran’s specific circumstances. The examiner was specifically directed to consider the Veteran’s reports of hearing loss symptoms during and since service, his reports of worse hearing loss in his left ear, the Veteran’s in-service exposure to explosion and gunfire, treatment notes noting a history of noise exposure without hearing protection, and no reported and recreational noise exposure. Further, the examiner was directed to provide a rationale if the Veteran’s reports are discounted, as well as a rationale for all opinions. 11/05/2020, BVA Decision. A February 2021 VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to his active service. The rationale largely relied on the lack of evidence of noise injury in the service treatment records, remarking that the Veteran is not competent to describe the etiology of the condition. Further, the examiner acknowledged that the IOM report noted the lack of definitive studies addressing delayed onset of hearing loss, but also included anatomical and physiological data to find that it is unlikely that delayed onset of hearing loss occurs. 02/01/2021, C&P Exam. Subsequently, the Veteran indicated that he was contacted to report to the February 2021 VA examination, but he was refused an in-person examination he appeared to meet with the examiner. The Veteran reported that he did not have an adequate audiological evaluation during his period of active service. Specifically, the Veteran never went into a soundproof room and listened to sounds through headphones. Also, the Veteran indicated that he never received an audiological evaluation at separation. 03/08/2021, Third Party Correspondence. The Veteran’s contentions are partially corroborated by the service treatment records, wherein both the audiological evaluations at enlistment and separation reflect sparse and incomplete annotations. 11/21/2014, STR – Medical, pages 10 & 52. The February 2021 VA medical opinion did not specifically address the Veteran’s reports of hearing loss symptoms during and since service, his reports of worse hearing loss in his left ear, the Veteran’s in-service exposure to explosion and gunfire, treatment notes noting a history of noise exposure without hearing protection, and no reported and recreational noise exposure. Moreover, the examiner was unable to address the Veteran’s contention that he did not receive an adequate audiological evaluation during active service, wherein the Veteran is competent to describe the circumstances of his medical examinations at enlistment and separation. As such, the Board finds that prior Board remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive #1, request that an appropriate clinician provide an addendum opinion regarding the etiology of bilateral hearing loss. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The clinician should address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss is related to service, to include the Veteran’s in-service hazardous noise exposure. 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, contradictory language in the IOM report, “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” referenced by in the July 2020 VA addendum opinion should be discussed and reconciled as to how the study’s findings relate to the Veteran’s specific circumstances. In considering any lay statements of record, the clinician should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. The examiner should consider all medical and lay evidence of record, including the Veteran’s reports of hearing loss symptoms during and since service, the Veteran’s reports of bilateral hearing loss worse in his left ear, the Veteran’s reports of hearing loss from an explosive device that went off within two feet from the left side of his head and from exposure to loud blasts from explosive devices and weapons during his time as automatic rifleman in infantry, a July 2012 VA treatment record noting a history of two years of military noise exposure to explosions, helicopters, tanks, gunfire, and rockets with no hearing protection and no occupational or recreational noise exposure, and the September 2011 VA examination noting no reported occupational and recreational noise exposure. The examiner must also specifically consider the Veteran’s contention that he did not receive an adequate audiological evaluation during active service. See 03/08/2021, Third Party Correspondence. The Veteran is competent to describe the circumstances of his medical examinations at enlistment and separation. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.