Citation Nr: 21023983 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-35 440 DATE: April 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1959 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in June 2020 and October 2020 for more development. In February 2021, the Board remanded this matter for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss which he contends was incurred in service due to military noise exposure. The Veteran asserts that he was regularly exposed to hazardous noise during service where he was on the flight line close to jet engines as an aircraft mechanic. Under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran has presented evidence that his military occupation role (MOS) was an aircraft mechanic. VA concedes that the Veteran’s MOS has a high possibility for hazardous noise exposure, and thus the Veteran may have been exposed to acoustic trauma. The Veteran was afforded a VA audiology examination in March 2018. Upon examination, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, finding that the Veteran’s audiometric thresholds were noted as within normal limits on the separation examination, with no findings related to shifts in audiometric thresholds, and therefore there was no evidence that his bilateral hearing loss was related to noise exposure in service. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Furthermore, the examiner did not convert the Veteran’s audiometric test results from the standards set by the American Standards Association (ASA) to those set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In addition, the examiner failed to discuss the Veteran’s exposure on the flight line to jet engines as a jet aircraft mechanic, and to take a history of the Veteran’s post service noise exposure. For those reasons, in a June 2020 remand the Board determined that additional development of the Veteran's claim was necessary prior to appellate review. Following the remand, in June 2020, the Regional Office (RO) obtained an addendum medical opinion from the same VA audiologist who provided the March 2018 medical opinion. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure. The examiner relied on the fact that the evidence did not show findings related to shifts in audiometric thresholds from enlistment through separation. However, the VA examiner did not specifically discuss those audiometric testing results. Further, the Veteran did not undergo any audiometric testing, other than a whisper test, at his December 1959 enlistment examination. Second, the VA examiner, citing the 2006 report of the Institute of Medicine, National Academy of Sciences (IOM), found that there was no scientific support for delayed onset noise-induced hearing loss; weeks, months, or years after the exposure event. Nevertheless, the VA examiner did not explain what other event, injury, or disease could have caused the Veteran’s current hearing loss. The VA examiner again relied on the finding that the Veteran’s hearing loss was within normal limits upon separation, a finding which was previously found in the June 2020 Board remand to be inadequate. Additionally, the Veteran, through his attorney, raised the theory that his service-connected tinnitus may have been caused by his current bilateral hearing loss. The record did not include an opinion addressing whether the Veteran’s bilateral hearing loss was caused or aggravated by his service-connected tinnitus. As such, the examination was found to be inadequate for adjudicative purposes and the Board remanded the Veteran's claim in October 2020 in order to obtain an addendum medical opinion. VA obtained another addendum opinion concerning the etiology of the Veteran's hearing loss in November 2020 from the same VA audiologist who provided the March 2018 and June 2020 medical opinions. The VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, is less likely as not caused by his service-connected tinnitus, and is less likely as not aggravated beyond its natural progression by his service-connected tinnitus. However, a review of the opinion reveals that the examiner simply "cut and paste" his prior medical opinion and did not respond to the Board's remand directives. Following the remand in February 2021, the RO obtained a medical examination and opinion from a different VA audiologist than provided the March 2018 and June 2020 medical opinions as directed. The March 2021 VA examiner opined that the Veteran’s claimed hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the Veteran’s hearing at the time of entry, and subsequent hearing examinations during service, including the Veteran’s separation examination were normal. The examiner acknowledged that the Veteran had an MOS of an aircraft jet mechanic, which resulted in the Veteran having a high probability of hazardous noise exposure. The examiner stated that, “although noise exposure is conceded, and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone; therefore, a nexus is not established.” The examiner opined that the Veteran’s claimed hearing loss was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As to the rationale, the examiner again acknowledged that the Veteran’s MOS had a high probability of exposing the Veteran to hazardous noise, but there is no evidence in the record of hearing loss due to military noise exposure or acoustic trauma. The examiner indicated that current literature does not support late onset noise induced hearing loss. However, the examiner does not cite which literature he relied upon. The examiner stated that, Although military noise exposure is conceded, and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone; therefore, the current hearing loss is less likely than not related to military noise exposure and it is less likely than not that the Veterans current hearing loss is approximately due to or the result of the Veterans service connected condition of Tinnitus. The examiner also opined that the Veteran’s claimed hearing loss was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the service-connected tinnitus condition. As to the rationale, the examiner again explains that there is no significant permanent shift in hearing thresholds from entrance to separation. The Board finds the above medical opinions are inadequate because the VA examiner essentially based his negative nexus opinion on the fact that the Veteran’s service treatment records do not show an in-service hearing loss. The examiner did not explain why evidence showing an in-service hearing loss is required to determine that the Veteran’s hearing loss was incurred in active service or is otherwise etiologically related to his active service, to include the reported exposure to noise. The Board acknowledges that the examiner also stated that current literature does not support late onset noise induced hearing loss, but only as a conclusionary statement. In addition, the examiner did not adequately explain why the Veteran’s hearing loss was not caused or aggravated by his service-connected tinnitus. The examiner ends his analysis by stating that there is no significant permanent shift in hearing thresholds from entrance to separation. However, the examiner did not explain why the Veteran’s tinnitus did not cause or aggravate the Veteran’s diagnosed hearing loss after he separated from service. As such, 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 a 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). The matter is REMANDED for the following action: 1. If possible, return the Veteran’s claim file to the audiologist who reviewed the file and provided the March 2021 medical opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file to another appropriate medical professional other than the March 2018 and June 2020 medical examiners who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner must review the claims file in its entirety, to include a copy of this (and the prior) remands, and that review must be noted in the report. Thereafter, the examiner is asked to provide an opinion or address the following: (a.) Prior to providing medical opinions, the examiner must convert any of the Veteran’s audiometric test results from the standards set by the American Standards Association (ASA) to those set by the International Standards Organization (ISO)-American National Standards Institute (ANSI), for any prior examination. (b.) Determine if it is it at least as likely as not that the Veteran’s bilateral hearing loss is related to his in-service noise exposure, to include his exposure to jet engines on the flight line as an aircraft mechanic? (c.) Determine if it is it at least as likely as not that the Veteran’s bilateral hearing loss was caused by his service-connected tinnitus? (d.) Determine if it is it at least as likely as not that the Veteran’s bilateral hearing loss was aggravated beyond its natural progression by his service-connected tinnitus? The clinician must note that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the fact that there are no audiometric test results showing that the Veteran had in-service hearing loss does not necessarily mean that the Veteran’s current hearing loss is not etiologically related to his active service. The examiner should address the likelihood of delayed onset hearing loss due to noise exposure during service. The clinician’s opinion should reflect consideration of whether, given the in-service noise exposure, the evidence establishes that the Veteran’s hearing loss was incurred in active service or is otherwise etiologically related to his active service, such as being the delayed result of the in-service noise exposure. See 38 C.F.R. § 3.303(d). The examiner must also cite to any research used and apply it to the Veteran’s specific MOS and medical history. 2. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 3. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.