Citation Nr: 21030811 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-08 184 DATE: May 19, 2021 REMANDED The appeal for service connection for bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1963 to December 1966, with service at Tan Son Nhut Air Force Base in Vietnam as an Air Policeman from April 1966 to December 1966. The Board thanks him for his service. He appeals from a November 2015 rating decision. The Board granted service connection for tinnitus and remanded the Veteran's claim for service connection for bilateral hearing loss disability to the agency of original jurisdiction (AOJ) in April 2021. Unfortunately, this appeal is being remanded again because it appears that, for some reason, the AOJ failed to take the action requested in the Board's last remand. An examination was requested for the Veteran's bilateral hearing loss disability claim, but no examination was conducted, and there was no subsequent AOJ adjudication of the claim. The Veteran appeals for service connection for bilateral hearing loss disability. While it was indicated on VA examination in April 2014 that the Veteran did not then have a right ear hearing loss disability as required for a grant of service connection by 38 C.F.R. § 3.385, he indicated during his December 2020 hearing that he feels that his right ear hearing has become worse since 2014. It appears that no VA examination has been conducted since April 2014. Additionally, the April 2014 VA medical opinion on whether hearing loss is related to service relied on a 2006 Institute of Medicine (IOM) study which states that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. However, the clinician did not address any qualifying or contradictory statements in the cited IOM study. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court addressed the Board's dependence on a negative VA medical opinion that relied on the IOM report that contained unfavorable findings as well as unaddressed contradictory findings regarding delayed-onset hearing loss. The Court held 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. The text involved in the Court decision was the IOM report titled Noise and Military Service: Implications for Hearing Loss and Tinnitus. The IOM study found that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicated 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 that definitive studies to address this issue have not been performed. The Board, in deciding the claim, must explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Thus, if the VA examiner relies on the IOM report to support a conclusion, the examiner should state why such conclusion is applicable to the facts of this Veteran's case. Accordingly, the Veteran will be provided with another VA examination as indicated below. On remand, any additional relevant treatment records will be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain any additional/updated VA treatment records. 2. After completion of the action in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of the any current right and left ear hearing loss. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that any current right or left ear hearing loss disability is related to service, including in consideration of the Veteran having in service hazardous noise exposure and tinnitus? It should be accepted that the Veteran had hazardous noise exposure and tinnitus in service, for the purposes of this opinion. A negative opinion cannot be based solely on a finding that his hearing was within normal limits on audiometric testing at separation from service. If the basis of a negative opinion is the absence of documented injury in the Veteran's service records, the clinician must explain whether (1) any injuries or noise exposure leading to the Veteran's current disorder would have been noted in the Veteran's service records; and (2) the Veteran would have sought treatment for such injuries or noise exposure. If the clinician cites to the 2006 Institute of Medicine Study on delayed onset hearing loss, the clinician must address any qualifying or contradictory statements relied upon in the medical text: the IOM study found that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated 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." There is no legal requirement that the in-service event or injury must be the sole cause of the disorder claimed. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; and other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.