Citation Nr: 21025849 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 05-16 665 DATE: April 29, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1959 to September 1963. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The RO’s November 2004 rating decision denied the Veteran’s claim seeking entitlement to service connection for bilateral hearing loss. The Veteran timely filed an appeal, and in October 2007, the Board issued a decision that denied the claim. The Veteran then appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2009, based on a Joint Motion for Remand (JMR), the Court remanded the case to the Board. In May 2011, the RO issued a rating decision that granted service connection at a noncompensable evaluation for left ear hearing loss, effective from June 29, 2004. As such, the benefit sought on appeal has been granted with respect to the Veteran’s left ear hearing loss and, thus, that issue is no longer before the Board. In November 2014, the Board issued a decision that denied the claim of entitlement to service connection for right ear hearing loss. In December 2015, the Veteran died. Shortly before the Veteran’s death, the Veteran appealed the Board’s decision to the Court. In May 2016, the Veteran’s son was substituted as the appellant by order of the Court. In an April 2017 Memorandum Decision, the Court vacated the Board’s 2014 decision and remanded this issue to the Board. The Board subsequently remanded the issue on appeal in a March 2018 decision. Additionally, in August 2007, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a November 2017 letter, the Appellant was notified that the VLJ who conducted the August 2007 Board hearing was no longer employed by the Board and that the Appellant had the right to another Board hearing. The Appellant was given 30 days to respond. As no response was received, the Board assumes that the Appellant does not desire a Board hearing. Entitlement to service connection for right ear hearing loss is remanded. Regrettably, a remand is necessary for further evidentiary development. A remand is required to provide a medical opinion that is adequate for adjudication. In accordance with the Board’s March 2018 remand, an addendum medical opinion was obtained in March 2020. The examiner opined that it was less likely than not that the Veteran’s right ear hearing loss disability was incurred in or caused by his active duty service. The examiner stated that there was no new evidence to reverse previous opinions regarding the etiology of the Veteran’s right ear hearing loss. The examiner indicated that the articles provided by the Veteran suggest late onset hearing loss from auditory damage from noise. The examiner stated that current research does not support a reversal of the Institute of Medicine (IOM)’s statement that there is no research to support late onset auditory damage from hazardous noise exposure in humans. The examiner acknowledged that based on some recent studies with rodents, a few investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure. However, the examiner noted that there are genetic and physiologic differences between humans and rodents, some of which are even observed among varying inbred strains of rodents used in research. Additionally, the examiner stated that the IOM report currently remains the most comprehensive review regarding effects of noise exposure in our population of veterans. The examiner further noted that the IOM report stated, “[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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The Board finds the March 2020 examiner’s opinion to be insufficient. The Board notes that the March 2018 Board remand instructed the examiner to consider the full record, to include service treatment records, post-service treatment records, and the Veteran’s lay statements concerning pertinent symptomatology. Additionally, the examiner was instructed to address all the articles submitted by the Veteran and indicate that his/her opinion is based upon the evidence of record. The examiner noted that the “articles provided by the Veteran suggest late onset hearing loss from auditory damage from noise” but did not discuss the articles in specific detail. Furthermore, the examiner did not clearly address the Veteran’s competent lay statements of record, in particular his lay statements regarding the onset of his hearing loss symptoms. Further, the examiner did not clearly indicate that the opinion was based upon the evidence of record. Since the Board’s remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additionally, the March 2020 examiner referenced an IOM report on noise exposure which noted the lack of scientific support linking delayed onset of hearing loss many years after noise exposure where hearing was normal immediately after the exposure. The examiner relied on the report for the premise that delayed onset hearing loss due to previous noise exposure is unlikely to occur. The Court has addressed the particular medical study cited in the medical opinion of record in a precedential legal opinion, in the case of McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court held that if the Board relies on a negative medical opinion, it must address the Veteran’s arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. With specific regard to the IOM study, the case references contradictory findings within the study that may lead one to a different conclusion as to the potential for delayed-onset hearing loss. Specifically, the study notes 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. It further notes that definitive studies to address this issue have not been performed. As this same study was relied on by the examiner in this case, the Board finds that the issue of contradictory findings in the IOM study has been reasonably raised by the record. Accordingly, the Board finds the March 2020 examiner’s opinion to be insufficient. Accordingly, remand is appropriate to obtain an additional audiological opinion regarding the etiology of the Veteran’s claimed right ear hearing loss disability. (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of the Veteran’s claimed right ear hearing loss disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right ear hearing loss disability is related to the Veteran’s claimed noise exposure during service? In answering this question, the examiner must review and consider the full record, to include service treatment records, post-service treatment records, and the Veteran's pertinent lay statements. Specifically, the examiner should address the Veteran’s competent lay statements that he was exposed to acoustic trauma from serving as a morse intercept operator, that he was not exposed to acoustic trauma post-service in his career as an accountant, and that he first noticed his hearing loss symptoms soon after separation from service. See VBMS, document labeled Hearing Testimony, receipt date 08/03/2007; see also VBMS, document labeled Correspondence, receipt date 10/15/2007. The examiner must specifically address all the articles the Veteran submitted including “Hearing: Noise Induced Hearing Loss” from familydoctor.org; “Noise-Induced Hearing Loss” from MayoClinic.com; and “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss” from the Journal of Neuroscience. See VBMS, document labeled Correspondence, receipt date 12/10/2004; VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 08/24/2007; VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 11/18/2009; and VBMS, document labeled Correspondence, receipt date 12/19/2011. The examiner must also address the apparent inconsistencies in the Institute of Medicine (IOM) report Noise and Military Service: Implications for Hearing Loss and Tinnitus, regarding the premise that “delayed onset hearing loss due to previous noise exposure are unlikely to occur”. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The examiner must indicate that his/her opinion is based upon the evidence of record. The examiner is advised that the United States Court of Appeals for Veterans Claims remanded this issue, in part, based upon an examiners reliance on a VHA policy in making a medical opinion. The examiner must only base his/her opinion upon the evidence of record. Note that the lack of diagnosed hearing loss in service cannot serve as the sole basis for a negative finding. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. 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. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.