Citation Nr: 21030845 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 06-37 221 DATE: May 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from May 1972 to May 1974. In August 2008, in pertinent part, the Board denied entitlement to service connection for hearing loss. The Veteran appealed the denial of service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court). In a July 2010 Order, the Court granted a Joint Motion for Remand (JMR), vacated the August 2008 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR. In November 2011, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. In October 2016 the Veteran appeared before the undersigned Veterans Law Judge at a Board video conference hearing and presented testimony on the issue on appeal along with other issues that have since been resolved and are no longer before the Board. A transcript of the hearing is associated with the Veteran's VA electronic claims file. In February 2017, the Board remanded the issue of service connection for hearing loss for additional development. The issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities which had also been on appeal to the Board was granted on remand in a January 2019 rating decision. In March 2019 and October 2020, the Board again remanded the issue of service connection for hearing loss for additional development. The case has since been returned to the Board for appellate review. Entitlement to service connection for bilateral hearing loss is remanded Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The February 2017 and March 2019 Board remand required that the VA examiner provide commentary on the Veteran's assertion that his bilateral hearing loss began in service due to repeated exposure to loud weaponry noise. Also, the October 2019, January 2021, and February 2021 VA examiners' reasoning relied on the Institute of Medicine (IOM), National Academy of Sciences 2006 article listed "Noise and Military service Implications for Hearing loss and Tinnitus." The IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. IOM did not rule out that delayed onset might exist but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Reliance on the medical community's uncertainty concerning the development of hearing loss long after noise exposure was inadequate. The Court has stressed that that acceptance in the scientific community is not required. See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014) ("the Board, when evaluating [record] evidence, cannot demand a level of acceptance in the scientific community [(51%)] greater than the level of proof required by the benefit of the doubt rule [(50%)"). The rationale deficiencies with the October 2019 VA audiological addendum, January 2021 audiological opinion, and February 2021 addendum opinion are that the examiner relied on the absence of hearing loss disability in service for the negative service connection opinion. The Board notes that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for a hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection is warranted if all of the evidence, including that pertinent to service, reflects that current hearing loss is related to in-service noise exposure or anything else in service. The negative opinions are inadequate because the examiners appeared to have relied solely on the lack of hearing loss during service, and did not address the Veteran's in-service noise exposure, as required by the Board's previous remands, and the Veteran's apparent lack of post-service noise exposure. The matters are REMANDED for the following action: 1. Obtain a VA supplemental medical opinion by an appropriate examiner other than the examiner that rendered the January 2021 opinion and February 2021 addendum opinion to determine the etiology of the Veteran's bilateral hearing loss. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his right ear hearing loss had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran's separation from active service. Also, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his left ear hearing loss in the range of 1000 to 2000 Hertz had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran's separation from active service. The examiner must: 1) address any threshold shifts noted during service; 2) address the Veteran's assertions of diminished hearing loss since service, to include any post-service noise exposure; and, address the Veteran's in-service military occupational specialty and the corresponding level of noise exposure. A complete rationale must be provided. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: *The Veteran's June 2016 assertion of diminished hearing loss since service, and use of hearing protection since his active duty service. *The Veteran's October 2016 Board testimony that he was exposed to regular weapons fire in service and that he noticed hearing difficulty in service. *The July 1972 service treatment record that noted impaired left ear hearing. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Also, the examiner is reminded that sole reliance on the 2006 IOM report is not adequate. (Continued on the next page) 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. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.