Citation Nr: 21022669 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 12-18 359 DATE: April 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter was previously before the Board in March 2015, August 2017, and most recently December 2018, wherein the Board issued a decision that denied the claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed this decision to the Court. In a July 2020 Memorandum Decision, the Court vacated and remanded the December 2018 decision back to the Board. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that in January 2021, the Veteran requested an additional ninety days to submit additional evidence and argument for his claims on appeal. The ninety day extension has passed and to date, the Veteran has not submitted any additional evidence or argument regarding his appeal. However, as the matters are being remanded, the Veteran may submit additional evidence on remand. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is due to his military noise exposure related to a small arms specialist and marksmanship instructor. As previously noted, the December 2018 Board decision denied entitlement to bilateral hearing loss. In that decision, the Board found that although the Veteran had demonstrated current hearing loss and tinnitus disabilities and that he was exposed to loud noises during service, the preponderance of the evidence was against a finding that either disability was related to military noise exposure. The Board found that the VA examiner’s interpretation and rationale for the Veteran’s hearing degradation to be more persuasive than the Veteran’s lay statements. In the July 2020 Memorandum Decision, the Court stated that the Board failed to provide adequate reasons or bases for its determination regarding the adequacy and probative value of the examiner’s June 2015 and October 2017 opinions. The Court noted that in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), that Court addressed the Board’s dependence on negative VA medical opinions that relied on medical texts generally, and the Institute of Medicine (IOM) report in particular, “containing unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss.” As relevant here, the Court held that the Board has an obligation to address contradictory or qualifying aspects of the IOM report when the issue is expressly raised by the veteran or reasonably raised from review of the evidence of record. Id. Also in McCray, the Board in that decision noted that, although a VA examiner provided a negative nexus opinion noting no sufficient scientific basis for the existence of delayed-onset hearing loss, the record contained an apparently countervailing portion of the IOM report indicating that “there is not sufficient evidence from longitudinal studies… 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 had not been performed.” Id. To this end, the Court concluded that in that situation “the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence and render the opinion inadequate, and if not, why not.” Id. The Court in the July 2020 Memorandum Decision found that the June 2015 VA examiner’s opinion contained the same language from the IOM report as that in McCray. (“There is not sufficient evidence from longitudinal studies…to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure…although definitive studies to address this issue have not been performed.”) The Court also noted that in the October 2017 VA opinion, the examiner specifically quoted to the same IOM report. The Court concluded that because the examiner included the same qualifying or contradictory analysis from the IOM report as part of her rationale for her opinion, the Board should have addressed this issue in rendering its decision regarding the adequacy and probative value of the examiner’s opinion. See McCray, 31 Vet. App. at 257; D'Aries v. Peake, 22 Vet. App. at 108. Consequently, the Court found that the Board’s failure to provide adequate reasons or bases in this regard requires remand of the claim for service connection for bilateral hearing loss. Furthermore, with regard to the examiners’ reliance on the IOM report, the Board notes that the Court previously found that, while the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report's findings pertinent to the matter. The Court noted that, while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). As such, the Board finds that in light of the contradictory findings regarding delayed-onset hearing loss in the IOM report, remand is necessary in order to obtain an addendum opinion addressing whether the Veteran’s bilateral hearing loss is related to his in-service noise exposure. 2. Entitlement to service connection for tinnitus Regarding service connection for tinnitus, the Court stated that the October 2017 VA examiner opined that tinnitus is known to be a symptom of hearing loss. The Court found that the two claims are inextricably intertwined and must be remanded together. Hence, this final issue is not yet ripe for appellate review and must be deferred pending re-adjudication of the remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the issues on appeal. Specifically, the Veteran should be asked to provide records from the provider or in the alternative, provide a release so that VA can attempt to obtain those records. If he provides the necessary release, assist him in obtaining the records. All attempts to obtain these records and responses must be associated with the claims file. 2. After completion of the above, arrange for a VA addendum medical opinion by an examiner other than the previous examiners to address the claim for bilateral hearing loss and tinnitus (the decision for an in-person examination is left to the discretion of the examiner). The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine as to whether the bilateral hearing loss and tinnitus at least as likely as not (50 percent or greater probability) a) had its onset in service; b) was otherwise incurred in service to specifically include the competently reported in-service noise exposure; or c) manifested to a compensable degree within one year of service. In offering such opinion, if relying to any extent upon the IOM study noted above, the examiner must (1) identify the medical text's qualifying or contradictory aspects; and (2) 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 hearing loss is as likely as not etiologically related to in-service noise exposure. Additionally, the examiner should consider the fact that the IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure," which may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss. (IOM report at 203-04.) The examiner should focus specifically on whether the noise exposure in service is the cause of 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. 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. VA law does not require that a medical professional state with any degree of certainty the exact etiology of a current hearing loss. The examiner is reminded that the lack of evidence demonstrating a complaint, treatment, or diagnosis of hearing loss in service, while probative, may not serve as the sole basis for a negative nexus opinion. In considering any lay statements of record, the examiner 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 examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.