Citation Nr: 21021325 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-23 745 DATE: April 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from October 1958 to October 1966, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in April 2019. A transcript of this hearing has been associated with the record. The Veteran's claim was most recently before the Board in January 2021 wherein it was remanded for additional evidentiary development. As discussed below, there was not substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, while the Board regrets the additional delay, another remand is warranted. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current bilateral hearing loss is related to hazardous noise exposure he experienced during his active duty service. As summarized in the Board’s January 2021 remand, the September 2020 VA opinion addressing the etiology of the Veteran’s bilateral hearing loss was found to be inadequate. Specifically, the Board noted that the September 2020 VA opinion relied on an Institute of Medicine report (Noise and Military Service, from September 2005) that the United States Court of Appeals for Veterans Claims (Court) addressed in a precedential decision, McCray v. Wilkie. The Court held that if the Board relies on a negative medical opinion, it must address the Veteran’s arguments challenging the medical text supporting the opinion and assess the existence and impact of features of the underlying medical text that may affect the probative value and adequacy of the medical opinion. Regarding the IOM study specifically, the Court indicated that there are contradictory findings within the study that may lead to different conclusions as to the potential for delayed onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). As the study was relied upon in the September 2020 VA opinion, the Board found in the January 2021 remand that the contradictory findings of the IOM study were reasonably raised by the record and needed to be addressed in an addendum medical opinion. Subsequently, in the January 2021 remand, the Agency of Original Jurisdiction (AOJ) was directed to obtain an addendum medical opinion and the Board further directed that “if relying on the 2005 IOM study, explanation is required as to the report’s additional finding 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.” The addendum opinion was obtained in February 2021. The February 2021 VA examiner cited to the IOM study in his rationale for his nexus opinion. However, the examiner did not specifically address the contradictory findings as requested by the Board in the January 2021 remand directives. As such, the Board finds there has not been substantial compliance with the previous remand and another remand is required for a fully developed medical opinion that is responsive to the January 2021 remand directives. Stegall, 11 Vet. App. at 271. This matter is REMANDED for the following action: Obtain an addendum opinion to the February 2021 opinion to determine whether it is at least as likely as not that the Veteran’s currently diagnosed hearing loss is related to his in-service noise exposure. The examiner is asked to provide the underlying reasons for all opinions expressed, and 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 against it. Note that if relying on the 2005 IOM study, explanation is required as to the report’s additional finding 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.” Note also that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. The examiner is asked to provide the underlying reasons for all opinions expressed, and 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 against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.