Citation Nr: 21029034 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-31 793A DATE: May 12, 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 September 1976 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2013 by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. This appeal was previously before the Board in August 2018 and February 2021, at which times it was remanded for further development, to include providing the Veteran with examinations, and to obtain an addendum medical opinion regarding his claim. For the reasons below, the Board finds that an additional remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Veteran seeks service connection, asserting that his in-service noise exposure caused him to develop bilateral hearing loss. Specifically, he contends that his use of loud machinery to remove paint from ship decks and piloting landing craft each contributed to his current hearing loss disability. The Board notes that the Veteran's in-service noise exposure has been conceded, and that he was granted service connection for tinnitus, based on such, in the rating decision on appeal. The Veteran's service treatment records show that in July 1984 he experienced high frequency hearing loss on a routine audiogram. Based on these results, further evaluation was requested. In August 1984, he underwent a follow-up audiogram and was instructed to use adequate hearing protection when exposed to high noise situations. In November 2013, the Veteran underwent a VA examination. At that time, a diagnosis of hearing loss was confirmed. As for nexus, the VA audiologist explained that it was less likely than not that the Veteran's hearing loss was due to service. As rationale, she explained that the Veteran entered the Navy with normal hearing and experienced no significant threshold shifts between enlistment and separation. In its August 2018 remand, the Board noted that the November 2013 examination was inadequate, as the Veteran's separation audiological examination was absent from the record. Because that examiner relied on an incomplete record, a new medical opinion was warranted. In September 2019, the Veteran again underwent a VA examination. At that time, the audiologist noted that the Veteran's file showed that hearing loss existed prior to entrance to service. However, a separation examination showed hearing loss without significant threshold shifts at any frequency, in either ear. The examiner concluded it was less likely than not that the Veteran's bilateral hearing loss was due to service. In support of this conclusion, he explained that there were no significant positive changes in hearing threshold from enlistment to separation. Per a 2006 Institute of Medicine (IOM) report, there is no 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 cessation of that noise exposure. Although definitive studies are lacking, based on anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects occur. He then explained that the evidence does not show an event, disease or injury in service and the service treatment records were silent as to complaints, treatment or diagnosis for either condition. In February 2021, the Board again remanded the claim, finding that because the examiner referred to the IOM study, further clarification was necessary due to recent case law which found that a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The study referred to in McCray was the same IOM study referenced by the September 2019 examiner. In a February 2021 addendum, the September 2019 audiologist reaffirmed that the Veteran's bilateral hearing loss was not due to in-service noise exposure, due to the lack of significant threshold shifts in service. On the matter of the IOM study, which the audiologist was asked to specifically address, he simply quoted the study, verbatim, as he had in his September 2019 examination report. When asked to address the question of service connection further, the examiner continued to cut-and-paste his previous answers. Thus, regrettably, a third remand is warranted in this matter. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there exists no adequate examination report upon which the Veteran's claim of entitlement to service connection for bilateral hearing loss can be decided, remand for an additional medical opinionpreferably from an examiner other than the one who provided the September 2019 and February 2021 opinionsis warranted. Additionally, VA examiners have consistently noted in their reports that the Veteran did not experience a significant threshold shift while in service. However, as noted above, in July 1984 the Veteran was instructed to undergo further testing after a routine audiogram showed hearing loss. He did so in August 1984. The Board notes that the August 1984 audiogram shows significant threshold shifts when compared to a February 1980 examination. For instance, in 1980, the Veteran's right ear hearing was measured at 10, 0, 20, 30, and 40 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. In August 1984, his right hearing was 5, 5, 30, 45 and 45. This represents shifts of 10 to 15 decibels at certain frequencies. On remand, the examiner should address the significance, if any, of these testing results. Finally, the Board notes that the September 2019/February 2021 examiner noted that the Veteran had some hearing loss at entrance; however, this level of hearing loss does not constitute hearing loss for VA purposes and the question of a pre-existing hearing loss disability is not before the Board. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that for a hearing defect to be noted at service entrance, it must meet the criteria set forth in 38 C.F.R. § 3.385). The matters are REMANDED for the following action: The Veteran's file should be provided to an audiologistpreferably one other than the one who authored the September 2019/February 2021 medical opinions if possiblefor purposes of review and to provide an opinion regarding the etiology of the Veteran's bilateral hearing loss. An examination of the Veteran is not required unless deemed necessary by the audiologist selected to proffer the opinion. Following a thorough review of the record, the examiner is asked to address the following: a) whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's bilateral hearing loss is etiologically related to service. The examiner should note that in-service noise exposure has been conceded; thus, there has been an in-service injury for purposes of the claim. b) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing hearing loss noted on the August 1976 entrance examination was aggravated during service. Aggravation is defined for VA purposes as a permanent worsening beyond the natural progression of the disability. In rendering the requested opinions, the examiner should consider the August 1977, February 1980, May 1984, July 1984, and January 1985 audiograms of record, as well as the Veteran's separation examination. The selected examiner is also asked to specifically address the significance, if any, of the July 1984 treatment note in which it was found that the Veteran had experienced high frequency hearing loss, and was instructed to undergo further testing. The examiner should also discuss the difference between the audiology results in earlier exams, compared to those from August 1984 which showed some threshold shifts of 10-15 decibels. Finally, if the record is returned to the February 2021 examiner, he is asked to adequately address his reliance on the IOM study, by identifying the medical text's qualifying or contradictory aspects (i.e., 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 explaining why he found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case, when answering the question of whether delayed onset bilateral hearing loss is as likely as not etiologically related to the Veteran's conceded in-service noise exposure. A detailed rationale must be provided for all opinions provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.