Citation Nr: 21029435 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-24 673 DATE: May 13, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1963 to September 1966. This matter is on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board of Veteran's Appeals (Board) in November 2019, whereupon it was denied. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court agreed, upon a November 2020 Joint Motion for Partial Remand (JMPR), that the Board's November 2019 decision be vacated and remanded to the Board for further adjudication. The matter is now again before the Board for further appellate action. In June 2019, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In March 2021 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to this letter and the Board will therefore proceed. 1. Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends that his left ear hearing loss is a result of in-service hazardous noise exposure. The Board, in its January 2019 decision, found that the Veteran has a current left ear hearing loss disability for VA purposes. Additionally, VA has already conceded in-service noise exposure. The Board denied the Veteran's claim for service connection for left ear hearing loss in a January 2019 decision and relied, at least in part, on a January 2016 VA etiology opinion. The November 2020 JMPR determined that the Board erred by failing to address the January 2016 VA examiner's reliance on an Institute of Medicine report in consideration of its holding in McCray v. Wilkie. In June 2019, the Court held in the McCray case that the Board must address a medical text that serves as the basis for a medical opinion which contains apparent qualifiers or contradictions to explain whether those aspects of the medical text diminish the probative value of the medical opinion. The Court provided that the Board may seek clarification from the medical professional if assistance in understanding or interpreting the underlying the medical text evidence is required. McCray v. Wilkie, 31 Vet. App. 243 (2019). In addition, the November 2020 JMPR noted that the Board did not address the relevant of a National Institute of Health article regarding delayed onset of hearing loss in 2014. In light of the November 2020 JMPR, the Board finds that remand is necessary to obtain an addendum opinion to address the etiology of the Veteran's left ear hearing loss. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an addendum etiology opinion by the January 2016 VA examiner or other appropriate examiner. The examiner should review the entire claims file and note such review in the opinion. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's left ear hearing loss had its onset during service or is otherwise related to service? The examiner should specifically consider the Veteran's contentions regarding the delayed onset of his hearing loss. In addition, the examiner should specifically address the National Institute of Health article regarding delayed onset of hearing loss in 2014. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.