Citation Nr: 21029545 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-30 892 DATE: May 13, 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 26, 1972, to November 16, 1972, and July 10, 1973, to August 21, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the January 2020 Board decision with respect to the denial for service connection for bilateral hearing loss, and remanded this matter to the Board for compliance with the JMPR instructions. The Court did not disturb the January 2020 Board decision with respect to granting entitlement to service connection for tinnitus. The Parties agreed that remand was warranted because "the Board erred by failing to provide an adequate statement of reasons or bases . . . when it failed to address all reasonably raised theories of entitlement." See JMPR at 2. Specifically, the Parties agreed that the "Board failed to discuss in its statements of reasons or bases [the Veteran's] assertion that his decreased hearing stems from an asserted in-service head injury." Id. The Parties further agreed that on remand "the Board must address this specifically raised theory of entitlement" and address whether the May 2014 audiology examination is adequate. Id. Given the length of time since the last audiology examination of record in May 2014, the fact that the May 2014 audiology results were deemed invalid by the examiner, the examiner's failure to discuss the asserted in-service head injury, and the fact that the most recent VA treatment records are from April 2017, the Board finds that remand is warranted for an updated audiology examination. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA audiological examination by an audiologist other than the one who performed the May 2014 examination to determine the nature and severity of his asserted bilateral hearing loss. Any and all efforts should be made to obtain reliable results that are adequate for rating purposes. If the examination reveals hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385, a medical opinion addressing the etiology of the Veteran's hearing loss should be secured. Based on the examination and review of the record, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss had its onset in or is otherwise related to his active military service. In addressing this question, please: (a) discuss and concede as true the Veteran's lay accounts of his bilateral hearing loss beginning in service after his head was struck (see August 2015 VA Form 9; November 2014 Notice of Disagreement; December 2014 VA Form 21-526EZ) and determine whether a nexus is "medically plausible" based on the same; (b) elicit from the Veteran the types of hazardous noise he was exposed to during active service (see November 2014 Notice of Disagreement) and discuss whether a nexus between that noise exposure and hearing loss is "medically plausible" given the same. If the Veteran asserts he was exposed to hazardous noise in active service, do not base a negative opinion on any lack of documentation of such noise exposure; (c) assume that no audiogram was performed at separation from service; (d) discuss the possibility of delayed-onset hearing loss, and if you rely on the IOM to support a negative nexus opinion, you must address the 2006 IOM statement 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 examiner is advised that basing a negative opinion on the lack of demonstrated hearing loss in service, at service separation, or since service will render the opinion inadequate. The examiner is further advised that failure to concede as true the Veteran's asserted in-service head injury, his reports of having hearing loss since the head injury, and his exposure to hazardous noise in service will render the opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.