Citation Nr: 21031075 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-28 477A DATE: May 20, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for thoracic spine disability is remanded. Entitlement to service connection for cervical spine condition is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection peripheral neuropathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from September 1983 to May 1992. In March 2018, the Veteran was provided a Board hearing and a transcript of the proceeding is of record. Most recently, an October 2019 Board decision denied the Veteran's claims for service connection. In October 2020, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court vacated the October 2019 Board decision. The JMR found that the Board did not provide adequate reasons or bases. Specifically, the Court found that the Board erroneously relied on VA opinions that were inadequate, to include the opinion on right ear hearing loss not addressing or considering the full Institute of Medicine (IOM) Report, as well as the opinions on the Veteran's thoracic and cervical spine conditions using the improper standard. In March 2021 correspondence, the Veteran was notified that the Judge who presided over his March 2018 Board hearing was no longer at the Board and of his right to request a new hearing. The Veteran did not respond to the correspondence, and thus, the Board will continue with the claims on appeal. 1. Entitlement to Service Connection: Right Ear Hearing Loss The Veteran contends that that his right ear hearing loss is related to his active duty service. In accordance with the Court's October 2020 Order, the Board finds that the October 2018 VA opinion is not adequate to fairly adjudicate the Veteran's claim. The October 2018 VA examiner partially based the hearing loss opinion on a certain section of the IOM report finding insufficient evidence of late-onset permanent noise-induced hearing loss in animals or humans. The Board observes that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." (IOM report at 203-04.) A medical text's qualifying or contradictory opinions may affect the probative value of any medical opinion that relies upon the text, whether agreeing with the medical text and using it as supportive or distinguishing from it. See McCray v. Wilkie, 31 Vet. App. 243. The Board finds that consideration of a theory of service connection involving delayed onset of a Veteran's perception of hearing loss may be supported by the IOM report, and a VA examiner's citation of the report should contemplate to all of the pertinent aspects of its findings. Given the above, the Board finds that a VA addendum opinion is required. 2. Entitlement to Service Connection: Thoracic Spine, Cervical Spine, and Peripheral Neuropathy The Veteran contends that his thoracic spine, cervical spine, and peripheral neuropathy of the bilateral lower extremities are related to his active duty service. In December 2018, the Veteran attended a VA examination for his thoracic and cervical spine conditions. The examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that there was no objective evidence found during the review of the evidence of a chronic medical condition or injury related ot the neck or back during the Veteran's service which would objectively be the cause of the claimed degenerative disc disease of the cervical spine and osteoarthritis of the thoracic spine. The examiner then noted it is just as likely as not that the Veteran's current neck and back condition are related to post service use or a post service occupational/recreational injury. In accordance with the Court's Order, the Board finds that the December 2018 VA opinion is inadequate to fairly adjudicate the claims. The Board finds that the VA examiner used an improper standard in the opinion provided. The examiner found the conditions were just as likely as not related to a post service over use or occupational/recreational injury. However, the standard to be used is whether it is at least as likely as not (50 percent probability or greater) that the Veteran's condition is related to his active duty service, and thus, the examiner should have considered this standard in providing the requested opinion. Therefore, the Board finds that a remand is required in order to retrieve an opinion that considers the proper standard for direct service connection. The Board notes that the Veteran's claims for peripheral neuropathy are inextricably intertwined with his claim for thoracic spine disability and must be remanded along with his pending claim. Harris v. Derwinski 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the electronic file any outstanding VA treatment records relevant to the Veteran's claims. 2. Send the claims file to an appropriate examiner to determine the etiology of the Veteran's right ear hearing loss. A copy of this remand should be made available to the examiner. If the examiner determines the requested opinion cannot be provided without an examination, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, to include the Veteran's lay statements concerning his in-service noise exposure and the IOM report concerning an individual's delayed awareness on the effects on hearing from noise, as well as the onset of current symptomatology, the examiner should opine as to the following: is at least as likely as not (50 percent probability or more) that the Veteran's right ear hearing loss is related to his period of active service, to include the notation of hearing loss on his March 1992 separation examination? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Send the claims file to an appropriate examiner to determine the etiology of the Veteran's cervical spine and thoracic spine conditions. A copy of this remand should be made available to the examiner. If the examiner determines the requested opinion cannot be provided without an examination, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, to include the Veteran's competent lay statements, as well as the Veteran's report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: is it at least as likely as not (50 percent probability or more) that the Veteran's cervical spine and thoracic spine conditions are related to his period of active service? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.