Citation Nr: 21024635 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-04 775 DATE: April 23, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to January 1966, including 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 Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned during an August 2016 Board hearing. The matter was remanded by the Board in June 2018, November 2019, and September 2020, and December 2020 for additional development. Entitlement to service connection for right ear hearing loss is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Veteran seeks service connection for a right ear hearing disability. Multiple VA hearing loss examinations have established a current right ear hearing loss disability. In-service acoustic trauma is conceded. In April 2012, the Veteran submitted a statement recounting in-service noise exposure from basic training, when he qualified with an M-14 rifle without hearing protection, and from his service in Vietnam and Korea, where he was exposed to noise from artillery fire, generators, mortars, vehicles, aircraft, grenades, mines, small arms fire and machine gun fire. In August 2016, he testified about a training event where he was exposed to noise from TNT blasts. He remembered that he was unable to hear for several days following this event. In an August 2014 statement and in August 2016 testimony, the Veteran’s wife stated, over many years, she had observed the Veteran having difficulty hearing during conversations, on the telephone, and while watching television. She noted that he frequently misunderstood words. Over the appeal period, the Veteran has submitted medical studies examining the issue of delayed onset hearing loss. In August 2013, he submitted a study entitled “Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth”(authored by S. G. Kujawa and M.C. Liberman) and “Things that Go Boom! Noise and Toxic Exposures Associated with Weapon Systems” (authored by D. Parrish, B. Hammer, and W. Thacker of Booz Allen Hamilton). In a November 2020 Informal Hearing Presentation, the Veteran’s representative referenced an additional study, titled “Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in ‘Recovered’ Ears.” available at http://www.jneurosci.org/content/jneuro/35/19/7509.full.pdf. In December 2020, the Board remanded the Veteran’s claim and so that a new VA etiology opinion could be obtained. The Board directed the examiner to address the Veteran’s report of hearing loss following the in-service exposure to noise from TNT, his wife’s testimony, and the medical literature noted above. In February 2021, a VA examiner opined the Veteran’s right ear hearing loss was less likely than not incurred in or caused by active service. In support of this opinion, he rejected the Veteran’s lay reports because they did not “constitute medical evidence” and they held “no probative value.” However, the Veteran’s statements and testimony include his recollections of in-service noise exposure and his perception that he was unable to hear after the noise of TNT explosions during training. As a layperson, the Veteran is competent to report his perception of noise and his observable symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the examiner has not provided an adequate rationale for rejecting the Veteran’s reports. Further, he has not considered the complete and accurate medical history. The etiology opinion is inadequate. See Stefl, supra. Further, the examiner did not comply with the Board’s remand directive to consider and discuss the medical literature submitted by the Veteran. Although the examiner noted the study by “ Kujawa and Liberman”, he did not address any other medical literature submitted by the Veteran. Additionally, in support of his negative etiology opinion, the examiner noted a 2006 study by the Institute of Medicine (IOM). He stated this study suggested, “if caused by military noise exposure, hearing loss would have an onset during service and/or would be present at separation.” However, the Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), noted the IOM report also states 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 and that definitive studies to address this issue had not been performed.” The Court determined that the Board has an obligation to address contradictory or qualifying aspects of the IOM report referenced by a VA audiologist when the issue is expressly raised by the Veteran or reasonably raised from a review of the record. The medical literature submitted and referenced by the Veteran raises the issue that hearing loss may develop long after a noise exposure event. The February 2021 examiner did not fully address the medical literature provided by the Veteran and he did not discuss the contradictory or qualifying aspects of the IOM report. His opinion is inadequate to evaluate the claim and it does not comply with the Board’s remand directives. See Stefl, supra; see also Stegall, supra. The matters are REMANDED for the following action: Obtain a new opinion from a qualified medical examiner to address the etiology of the Veteran’s right ear hearing loss. Schedule the Veteran for a new examination only if deemed necessary by the examiner selected to provide the opinion. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current right ear hearing loss disability was incurred in service or is otherwise related to military service. The examiner must specifically acknowledge and discuss the Veteran’s reports of in-service noise exposure and patterns of post service right ear hearing loss. The examiner must acknowledge and discuss the Veteran’s lay reports (April 2012 statement and August 2016 testimony), his wife’s reports (August 2014 statement and August 2016 testimony), and all medical literature submitted by or referenced by the Veteran in support of his claim (“Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth”(authored by S. G. Kujawa and M.C. Liberman; “Things that Go Boom! Noise and toxic Exposures Associated with Weapon Systems” (authored by D. Parrish, B. Hammer, and W. Thacker of Booz Allen Hamilton); and, “Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in ‘Recovered’ Ears.” available at http://www.jneurosci.org/content/jneuro/35/19/7509.full.pdf. As the Veteran has submitted evidence highlighting the possibility of delayed-onset hearing loss, the examiner must discuss the relevance, if any, of delayed-onset hearing loss in the etiology of the present right ear hearing loss. Simply observing that right ear hearing loss was not noted in in-service hearing tests will be deemed an inadequate rationale for a negative etiology opinion. If the examiner attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.