Citation Nr: 21028738 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-60 534 DATE: May 11, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied entitlement to service connection for right ear hearing loss. The Veteran appealed the December 2018 Board decision denying entitlement to service connection for right ear hearing loss to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board. In October 2020, the Board remanded the claim for additional development, including a VA medical opinion. That development has been completed, and the case has since been returned to the Board for appellate review. Upon review, while the Board regrets further delay, additional development is necessary prior to adjudication of the claim. Following remand, another VA examination was performed in March 2021. The examiner opined that the Veteran's right ear hearing loss was less likely than not related to noise exposure during military service, explaining that there was no evidence of a significant shift in auditory thresholds in the right ear comparing the entrance and separation audiograms. Nevertheless, the March 2021 VA examiner did not discuss whether the Veteran's delayed-onset hearing loss could be related to his military service, regardless of the fact that the disorder did not have its onset therein. Nor did she explain how hearing loss due to noise exposure generally presents or develops. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) 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, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). See also Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). As the March 2021 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the opinion is inadequate. In addition, the examiner cited to the Institute of Medicine (IOM) Study (2005) "Noise and Military Service: Implications for Hearing Loss and Tinnitus," for the proposition that there is insufficient evidence to determine whether permanent noise induced hearing loss can develop much later in one's lifetime, long after the cessation of noise exposure and that it is unlikely that such delayed effects occur. See March 2021 VA examination report. While the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs, that statement does not indicate the full extent of the report's findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found that there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." Id. at 203-04. Therefore, the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (the Board has an obligation to address contradictory or qualifying aspects of the IOM report when the issue is expressly raised by the veteran or reasonably raised from review of the evidence of record). The examiner also stated that subsequent civilian noise exposure or the normal aging process "could be responsible" for the Veteran's right ear hearing loss but such would require speculation. However, the examiner did not explain why except to reiterate that the Veteran's hearing in the right ear was within normal limits throughout active service. VA may not rely on a speculative medical opinion, but an opinion is not inadequate when an examiner is unable to provide an opinion but gives a valid reason for being unable to opine. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative and cannot be assigned probative weight when it uses equivocal language such as "could" or "might," without any other rationale or supporting data); see also Jones v. Shinseki, 26 Vet. App. 356 (2012). For these reasons, the Board finds that an additional VA medical opinion is needed. The matter is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After the foregoing development has been completed, obtain a VA opinion with respect to the Veteran's right ear hearing loss disability claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should also be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. 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, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should opine as to whether it is at least as likely as not that the Veteran's right ear hearing loss is causally or etiologically related to his military service, to include any noise exposure therein. He or she is advised that in-service exposure to hazardous noise has been conceded. See December 2018 Board decision; March 2020 Court memorandum decision. The examiner should explain the significance, if any, of any threshold shift or lack thereof in service. In rendering this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.