Citation Nr: 21025921 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-11 875 DATE: April 29, 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 in the Army from April 1966 to January 1968. This matter before the Board of Veterans’ Appeals (Board) is on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in May 2018. A transcript of the proceeding is of record. This matter was most recently before the Board in September 2020. The Board remanded on these issues to afford the Veteran the opportunity to present for a new VA examination for his bilateral hearing loss and tinnitus, and to seek an additional medical opinion. A review of the file reflects that a new examination was completed and a medical opinion was obtained. However, for the reasons outlined below, the Board finds that while the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the opinion provided is inadequate for adjudication purposes, therefore necessitating a remand once more. 1. Entitlement to service connection for bilateral hearing loss is remanded. As explained in the prior Board decision dated September 2020, the Veteran was found to have a current diagnosis of bilateral hearing loss by VA standards during the pendency of the appeal. Specifically, a VA examination dated August 2019 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 45 60 LEFT 20 25 35 45 60 The average pure tone threshold for the right ear was 40, and the average pure tone threshold for the left ear was 41. Speech audiometry revealed speech recognition ability of 96 percent in each ear. Dr. Y.K., the examiner who performed the Veteran’s hearing test, however, opined at that time it was not at least as likely as not that his hearing loss was caused by or the result of an event that occurred during his military service. She rationalized, “There is no significant permanent shift in hearing thresholds beyond test variability from entrance…to separation…, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There is no report of complaint/treatment for hearing decrease in STRs [service treatment records] or at separation. As a result, there is no clear objective evidence to support a delayed onset of hearing loss in the absence of complaints of decreased hearing and normal hearing during active duty. Although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology…” Another negative nexus opinion is also of record, though it was provided at a time when the Veteran’s bilateral hearing loss did not rise to a level that qualifies as a current disability by VA standards. The Board observed a positive private opinion provided by civilian ENT Dr. Simpson in June 2013, which stated: “After reviewing his military records, it is hard to imagine not having even greater loss of hearing than he already has from this amount of noise exposure. It is certainly not the classic pattern of hearing loss for noise. There may well be a hereditary component as well…I have no doubt that exposure to noise in the military has had a decided factor in his hearing loss based on his military experience.” The Board found that Dr. Y.K.’s opinion was inadequate, explaining: “The Board is aware that normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, an IOM report has indicated that “[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” and that “definitive studies to address this issue have not been performed.” See McCray v. Wilkie, 31 Vet. App. 243, 253 (2019). Dr. Y.K. provided another opinion in response to the Board remand in February 2021. She opined it was less likely than not that the Veteran’s hearing loss was incurred in or caused by his in-service noise exposure, rationalizing: “Although Veteran reports decreased hearing on active duty, there is no significant permanent shift in hearing thresholds beyond test variability from entrance…to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There is no report of complaint/treatment for hearing decrease in STRs or at separation. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure.” Dr. Y.K.’s February 2021 opinion is virtually identical to her opinion provided in August 2019 and the Board finds it is similarly inadequate. As such, the Board shall remand once more to obtain an opinion – this time, from a different audiologist – that considers the IOM report and the evidence of record. 2. Entitlement to service connection for tinnitus is remanded. The adjudication of the issue of entitlement to service connection for bilateral hearing loss could significantly change the adjudication of entitlement to service connection for tinnitus, especially in light of the new VA opinion pending. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Consideration of the issue of entitlement to service connection for tinnitus, therefore, will be deferred until the intertwined issue regarding the Veteran’s bilateral hearing loss is resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board will therefore revisit this issue after the disposition of the Veteran’s claim noted above. The matters are REMANDED for the following action: 1. The AOJ should seek an opinion from an audiologist other than Dr. Y.K., the audiologist who provided the past two inadequate opinions, as to whether it is at least as likely as not (50 percent or greater probability) that any such bilateral hearing loss occurred in or is otherwise etiologically related to the Veteran’s military service, to include his exposure to loud noises during service. The examiner should specifically discuss areas of agreement or disagreement with the June 2013 civilian ENT opinion which stated as follows: “After reviewing his military records, it is hard to imagine not having even greater loss of hearing than he already has from this amount of noise exposure. It is certainly not the classic pattern of hearing loss for noise. There may well be a hereditary component as well…I have no doubt that exposure to noise in the military has had a decided factor in his hearing loss based on his military experience.” The examiner should accept as fact that the Veteran’s hearing loss meets the statutory threshold to qualify as a current disability by VA standards. The examiner should also consider the medical literature for and against the concept of delayed onset hearing loss and provide an explanation based on the facts of this particular case whether the Veteran demonstrates the characteristics of delayed onset hearing loss. The examiner should consider the following: • the Veteran’s STRs documenting normal audiological results during service; • the April 2012 VA examination and opinion; • private treatment records associated with the file in July 2013; • the May 2018 hearing testimony; • the private June 2018 audiogram; • private treatment records associated with the file in July 2019 pertaining to his hearing loss; • the August 2019 VA examination and opinion; • the Veteran’s lay statement dated May 2020; and • the February 2021 VA examination and opinion. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (continued on the next page) 2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.