Citation Nr: 21022934 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-28 344 DATE: April 19, 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 September 1960 to August 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. This case was initially before the Board in February 2019, at which time the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board’s February 2019 decision and remanding the case for further action consistent with the terms of the JMR. The Board has since remanded this case in May 2020 and December 2020 for additional development. Unfortunately, as discussed below, the Board is not satisfied that there has been substantial compliance with the most recent remand instructions; therefore, the matter must be remanded once again. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss which he contends was incurred in or caused by exposure to excessive noise during service. In numerous statements to VA, the Veteran has outlined the extent of his military noise exposure. The Veteran asserts that due to his military occupational specialty (MOS) of automatic flight control system specialist, he worked on the flight line repairing and maintaining aircraft systems, which exposed him to aircraft engine noise on a daily basis. Further, his MOS duties also required him to fly in the cargo hold of C-130 Hercules turboprop aircraft on long-distance flights. The Veteran has submitted articles and reports detailing that the C-130 aircraft can generate noise levels in excess of 118 decibels. He has consistently stated that he was never supplied with hearing protection when working around or flying on military aircraft and that he first noticed a decrease in hearing acuity shortly after discharge from service. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay statements, the Veteran’s exposure to excessive military noise during service is conceded. Pursuant to the Board’s most recent remand, an addendum medical opinion was obtained from a VA audiologist in January 2021. Upon review of the Veteran’s file, the VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to military service. However, the opinion was based solely on the fact that the Veteran’s hearing acuity was within normal limits at his separation examination with no significant threshold shift between entrance and separation. This medical opinion provides an insufficient basis on which the Board can rely to deny a claim for service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of a hearing loss disability during service is not in and of itself fatal to a claim for service connection for bilateral hearing loss). Notably, the VA examiner did not consider or discuss the relevance, if any, of the Veteran’s claimed exposure to hazardous noise during service or his contention of noticing signs of hearing loss shortly after separation from service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board acknowledges that the Veteran has undertaken significant development in support of his claim, including providing detailed lay statements describing the nature and extent of his in-service noise exposure, as well as articles and reports explaining how noise-induced hearing loss may develop gradually over time. See July 2020 Correspondence. However, the Board notes that a VA medical opinion has not yet been obtained in this appeal that adequately considers and addresses this competent and credible evidence of record, to include the Veteran’s lay statements with regard to his MOS duties and experiencing a decrease in hearing acuity very shortly after service. In light of the above, the Board finds that the Veteran’s claim must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain an addendum medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matter is REMANDED for the following action: Forward the Veteran’s claims file, including a copy of this REMAND, to a VA audiologist (who has not yet provided an opinion in this Veteran’s case) to provide an addendum medical opinion addressing the nature and etiology of the Veteran’s bilateral hearing loss. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety and the review should be noted in the examination report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during active service, within one year of separation, or is otherwise related to any in-service disease, event, or injury, to include conceded exposure to excessive military noise? It is imperative that the requested medical opinion reconcile all available evidence of record, to include the Veteran’s lay statements and hearing testimony, service treatment records, post-service medical records, including all prior examinations and medical opinions, and any other pertinent evidence of record, to include all evidence submitted by the Veteran in support of his claim. However, the provided opinion must specifically consider and discuss the following evidence: i. November 2018 Private Medical Opinion provided by the Veteran’s private doctor, D.W., M.D. ii. July 2020 Correspondence in which the Veteran describes the nature and extent of his noise exposure during service, including his MOS duties, calculated flying time in the cargo hold of the C-130 aircraft, and the fact that he never wore hearing protection while working on the flight line or while flying on military aircraft. iii. October 2018 Board hearing testimony in which the Veteran testifies that he first noticed decreased hearing acuity shortly after separation from service when he enrolled in college and had trouble hearing his professors lecturing in class. iv. NIH Publication No 14-4233: “Noise-Induced Hearing Loss,” National Institute on Deafness and Other Communication Disorder (submitted by the Veteran in July 2020), which details that noise-induced hearing loss may develop gradually over time and may not be noticeable until it becomes more pronounced. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is further reminded that the absence of complaint or diagnosis of hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay statements and other evidence of record must be considered and weighed in making the determination as to whether a nexus exists between the Veteran’s hearing loss disability and his military service. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner’s clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran’s claims file, as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the medical opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.