Citation Nr: 21021497 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-53 954 DATE: April 13, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1961 to July 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. In July 2019, the Board remanded the matter for an addendum opinion regarding the etiology of the Veteran’s bilateral hearing loss. An addendum opinion was obtained in January 2020, with additional clarification to the opinion obtained in August 2020 from the same audiologist. The January and August 2020 examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by service. In a January 2021 remand, the Board found the January and August 2020 negative nexus opinions to be supported by inadequate rationales and remanded the matter again for another addendum opinion from a different examiner. An addendum opinion was obtained in January 2021. and the examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by service. Unfortunately, as the January 2021 opinion is supported by an inadequate rationale and failed to comply with some of the Board’s January 2021 remand directives, remand is warranted yet again for another addendum opinion. The January 2021 addendum opinion is inadequate for several reasons. First, the Board instructed the examiner to discuss the possibility of delayed-onset hearing loss and to address conflicting statements within the 2006 Institute of Medicine (IOM) report if he relied on that study. The examiner did cite the 2006 IOM report for the proposition that delayed-onset hearing loss does not exist, but did not, as instructed, address conflicting statements within the report indicating that there was neither evidence to support nor refute delayed-onset hearing loss. Second, the Board instructed the examiner to concede that the Veteran sustained acoustic trauma from in-service noise exposure. The examiner failed to make the instructed concession. See January 2021 C&P examination at 2, § 3C (“Acoustic trauma (ear injury) cannot be conceded based on noise exposure alone.”). In addition, the examiner stated that while the Veteran could have sustained an ear injury from noise exposure in service, it was not greater than a 50 percent probability. This is the incorrect legal standard, as it is only required that the evidence be in equipoise (i.e., evidence of 50 percent probability is sufficient to find in the Veteran’s favor). Third, the Board instructed the examiner to concede the veracity of the Veteran’s reports of experiencing hearing loss shortly after leaving service. The examiner, again, failed to make the instructed concession. See January 2021 C&P examination at 2, § 3C (“There is no evidence to support this statement.”). And again, the examiner relies on the incorrect legal standard by stating the “evidence does not show a probability of greater than 50% that hearing loss began shortly after service.” See id. Fourth, as observed in the April 2021 Post-Remand Brief, the examiner’s rationale is internally inconsistent. In this regard, the examiner indicates there is some research of increased effects of age-related hearing loss due to early noise exposure, but then attributes the Veteran’s hearing loss solely to age without discussing the possibility that early noise exposure increased its effects. Accordingly, the Board finds the January 2021 addendum opinion and its supporting rationale to be wholly inadequate. As a result, remand is, unfortunately, necessary yet again to obtain an adequate addendum opinion to ensure the VA fulfills its statutory obligation to assist the Veteran. The matter is REMANDED for the following action: Provide the claims file to an audiologist other than the January/August 2020 audiologist and the January 2021 audiologist for preparation of an addendum opinion. No additional examination is necessary unless the examiner determines otherwise. Following review of the claims file, the audiologist should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss had its onset in or is otherwise related to his period of active duty service, to include as a result of conceded noise exposure therein. Please consider the following in addressing this question: 1. do not rely solely on the fact that the Veteran had “normal” hearing at separation from service or in service to support the opinion; 2. discuss the possibility of delayed-onset hearing loss, and if you rely on the IOM to support a negative nexus opinion, you must address the 2006 IOM statement that “[t]here 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” and that “definitive studies to address this issue have not been performed”; 3. discuss and concede the fact that the Veteran sustained acoustic trauma from in-service noise exposure, to include as a result of his military occupational specialty as a photographer often stationed in close proximity to the flight line, and determine whether a nexus to service is “medically plausible” based on the same. This means the examiner must assume as true that the Veteran sustained acoustic trauma in service and failure to do so will render the opinion inadequate; 4. discuss the lack of post-service hazardous noise exposure as a result of the Veteran’s post-service employment in low noise environments as he described in his April 2019 hearing testimony; 5. discuss and concede the Veteran’s lay accounts of his bilateral hearing loss beginning shortly after leaving service (see April 2019 lay statement; April 2019 hearing transcript at 4; October 2016 VA Form 9; February 2015 Notice of Disagreement) and determine whether a nexus is “medically plausible” based on the same. This means the examiner must assume as true that the Veteran began experiencing hearing loss shortly after service and failure to do so will render the opinion inadequate; 6. if you attribute the Veteran’s hearing loss to other etiologies, to include aging or genetics, please explain why those other etiologies are more likely than in-service hazardous noise exposure to have caused the Veteran’s hearing loss; and 7. consider and discuss the medical articles cited by the Veteran’s representative in the April 2021 Post-Remand Brief, at page 8, and provided below: (a.) Liberman, Epstein, Cleveland, Wang, Maison, Toward a Differential Diagnosis of Hidden Hearing Loss in Humans, PLOS ONE (2016), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0162726, (“Noise damage early in life likely accelerates the age-related further loss of hair cells and cochlear neurons, even in the absence of further ear abuse.”). (b.) Kujawa, Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, The Journal of Neuroscience (2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1855187 (“Data suggest that pathologic but sublethal changes initiated by early noise exposure render the inner ears significantly more vulnerable to aging.”). (c.) Kujawa, Liberman, Adding Insult to Injury: Cochlear Nerve Degeneration after “Temporary” Noise-Induced Hearing Loss, The Journal of Neuroscience (2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2812055/ (“Results suggest that noise-induced damage to the ear has progressive consequences that are considerably more widespread than are revealed by conventional threshold testing.”). The full articles are available at the website URLs provided above. The examiner’s attention is drawn specifically to the quotes highlighted above, and the examiner should opine based on the research in these articles whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s current hearing loss is due to aging that was accelerated, exacerbated, or aggravated by initial conceded acoustic trauma in service. Failure to follow all remand instructions, to include requested concessions, will render the opinion inadequate and will necessitate yet another remand to obtain another addendum opinion. The examiner is reminded that the standard to be applied in these proceedings is equipoise. It is only required that the evidence be at least 50 percent probability. It is NOT required that the evidence support a greater than 50 percent probability. A complete rationale must be provided for all opinions expressed or the opinion will be returned as inadequate. If unable to provide a medical opinion without resorting to speculation, the examiner should provide a statement as to whether there is any 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. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.