Citation Nr: 21026318 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-34 697A DATE: April 30, 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 Navy from June 1977 to July 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In November 2018, the Veteran and his wife testified at a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. In June 2019, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In February 2021, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in November 2018 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but did not respond. By the terms of the letter, absent a response, it is assumed that he does not wish to appear for another hearing on the hearing loss issue. In addition to the issues addressed herein, the Veteran has also perfected an appeal with respect to his entitlement to service connection for an acquired psychiatric disability and a low back disorder. However, he has requested a hearing in connection with those issues. As such, those issues will be the subject of a separate Board decision. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. The Veteran was afforded a VA examination in January 2020. The examiner found that the Veteran had a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385, but that it was less likely than not that the disability was caused by or the result of an event in service. While conceding noise exposure in service, the examiner observed that the Veteran had had multiple hearing evaluations during service, all of which were within normal limits, bilaterally; that there was no evidence of a permanent positive threshold shift during service in either ear that was greater than normal measurement variability; that the service treatment records were silent for complaints of hearing loss; and that the Veteran’s exposure to hazardous noise during civilian life was far greater than the three years of exposure he had in the military. The examiner also cited to an Institute of Medicine (IOM) report for the proposition that, based on current knowledge, there was no reasonable basis for delayed-onset hearing loss. Another VA examiner offered an opinion in August 2020. After reviewing the record, that examiner also concluded that it was unlikely that the Veteran’s hearing loss was related to service. In support of that conclusion, the examiner noted that a comparison of the Veteran’s enlistment and separation audiograms did not reveal a significant (i.e., great than 10-decibel) threshold shift in either ear; that the Veteran’s hearing was within normal limits, bilaterally, at the time of his service separation examination; and therefore, while the Veteran had noise exposure during service, the evidence did not support that he suffered noise-related injury while in service. The examiner also cited to a 2005/2006 IOM report for the proposition that delayed-onset hearing loss due to previous noise exposure is unlikely to occur. The United States Court of Appeals for Veterans Claims (Court) has observed that the IOM study cited by the 2020 examiners contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, it was noted that the report indicates that based on current knowledge of cochlear physiology there is no sufficient scientific basis for the existence of delayed-onset hearing loss, while also indicating 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.” The Veteran submitted a November 2014 report from a private physician, in support of his claim. However, the physician’s opinion is also based in part on the IOM report. Further, the physician by his own description did not review the Veteran’s service treatment records, and he cited to no data that suggested that the Veteran suffered from noise-induced hearing loss during service or shortly thereafter. In addition, the Veteran has since asserted in a November 2020 statement that he believes his current hearing loss might be attributable to a concussion he sustained during service in October 1978. In January 2021, his representative challenged the VA examiners’ reliance on the IOM report and cited to medical authorities he believed to be supportive of the Veteran’s claim. In light of the VA examiners’ reliance on the IOM report, the representative’s challenge with respect to that reliance, the Veteran’s recent allegation that his hearing loss may be due to an in-service head injury, and the additional authorities cited by the representative, the Board will remand the case for addendum opinion. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have a clinician with appropriate experience review the record for purposes of providing an opinion with respect to the etiology of the Veteran’s bilateral hearing loss. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s bilateral hearing loss disability had its onset in, or is otherwise attributable to, his period of active service, to include in-service exposure to noise. In so doing, the examiner should address the Veteran’s theory that his hearing loss may be due to a documented in-service head injury he sustained in October 1978. The examiner should also address the medical authorities and associated arguments raised by the Veteran’s representative in a January 2021 Informal Hearing Presentation. If the examiner places reliance on the 2005 report from the Institute of Medicine, pertaining to delayed onset of hearing loss, the examiner must acknowledge and discuss any apparent qualifiers or contradictions in that report as they relate to the acknowledgement therein that definitive studies have not been performed to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of noise exposure. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, 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.