Citation Nr: 21031551 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-01 828 DATE: May 24, 2021 ISSUE Entitlement to service connection for a bilateral hearing loss disability. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in a Travel Board hearing in March 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In August 2019, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran has claimed that his bilateral hearing loss disability is due to his active duty service. The Veteran was given a Board Hearing in March 2019. During the hearing, the Veteran testified before the undersigned Veterans Law Judge that he believes his hearing loss is due to his continued firing of M60 weaponry, and his proximity to explosions while in service. He stated that he was not given hearing protection. The Veteran also testified that he started notice hearing loss symptoms from the time that he was in Vietnam. Following service, the Veteran stated that he worked construction for a few years, although he was given hearing protection for that job. The Veteran is competent to report the symptoms he experiences, such as those associated with his hearing loss. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As noted above, the Veteran's claim was previously before the Board in August 2019. In that Decision, the Board found that the previous etiological opinions provided by VA examiners were inadequate. In brief, the Board found that the March 2013 and October 2015 VA examiner's reports failed to take account of the lay statements and claims of the Veteran, as neither report discussed any event, injury, and/or claim that the Veteran had raised regarding his in-service noise exposure. As such, the Veteran's claim was remanded in August 2019 for another VA examination. The examiner was asked to specifically acknowledge the lay statements of the Veteran, with particular attention to his March 2019 testimony. That VA audiological examination occurred in February 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. The examiner then wrote that the Veteran's disability was less likely than not due to his military service, and the following rationale was provided: there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. Separation exam in March 1972 showed normal hearing with thresholds at 5-10 dB. There is no report of complaints/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure. Thus, a negative etiological opinion was provided. Following the VA examination, the Veteran's Representative submitted an Appellate Brief in May 2021. In the Brief, the Veteran's Representative argued that the Veteran was subject to significant noise while in service, as evidenced by his military occupational specialty of infantryman, and his Combat Infantryman Badge. This included the use of claymore mines, "heavy weapons during ambushes against enemy personnel," and "when being near or being transported by helicopter." The Representative attached the Veteran's entrance and separation audiological examinations and wrote that "it appears that his hearing became worse in all cases, except one where it improved." The Representative also included a fact sheet from the National Institute on Deafness and Other Communication Disorders and pointed to a finding that with "exposure to impulse or continuous loud noise ... there may be residual long-term damage to your hearing." Finally, the Representative then argued that the February 2020 VA examiner's report "is flawed because it fails to take into consideration research by the medical community at large on delayed onset hearing loss." The Board has confirmed that the entrance and separation audiological examinations attached to the Representative's Brief are accurate from the Veteran's service treatment records. The Board has also confirmed the potential finding from the National Institute on Deafness and Other Communication Disorders. See NIDCD Fact Sheet: Noise-Induced Hearing Loss; https://www.nidcd.nih.gov/sites/default/files/Documents/health/hearing/NIDCD-Noise-Induced-Hearing-Loss.pdf. Importantly, the Board observes that it is not permitted to make medical determinations as to the nature and etiology of any disability based upon its own interpretation of medical charts or lab results. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). This includes the argument submitted by the Veteran's Representative regarding the potential for delayed onset hearing loss from the NIDCD Fact Sheet. The Board is also reminded that while the February 2020 VA examiner did reference auditory noise exposure, they did not discuss the Veteran's testimony, where he indicated an early onset of symptoms of bilateral hearing loss. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran's claim should be remanded to the same VA audiologist who conducted the February 2020 VA examination for an addendum opinion. That addendum opinion must consider the Veteran's testimony, as well as the arguments of the Veteran's Representative in the May 2021 Appellate Brief. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Forward the Veteran's claims file to the same VA audiologist who conducted the February 2020 VA examination for an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss disability. The entire claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The examiner is asked to offer opinions as to the following: (a.) whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that the Veteran has provided lay statements and testimony regarding his bilateral hearing loss disability, his in-service noise exposure, and his symptoms of hearing loss while on active duty in Vietnam, which he is competent to report. The examiner is also specifically directed to address the argument submitted by the Veteran's Representative in May 2021, including that: (1) the Veteran's separation exam showed worsening of hearing in all areas except one where it improved, when compared to the entrance exam; and (2) a Fact Sheet from the National Institute on Deafness and Other Communication Disorders indicates that "exposure to impulse or continuous loud noise ... may [cause] residual long-term damage to your hearing." The Fact Sheet is available at https://www.nidcd.nih.gov/sites/default/files/Documents/health/hearing/NIDCD-Noise-Induced-Hearing-Loss.pdf. A detailed rationale is required. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.