Citation Nr: 21032881 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 19-00 302A DATE: May 28, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from June 1958 to May 1961. He also had service of an unverified nature in the United States Marine Corps and the Army Reserves. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination and the present appeal ensued. The claim was previously before the Board in December 2020, when the Veteran's claim was remanded for further development. The Veteran previously testified at a September 2020 virtual hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran's VA medical examination has found that the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. Pursuant to the December 2020 remand, the Veteran was provided a VA examination in March 2021. However, the examiner failed to adequately address the etiology of the Veteran's bilateral hearing loss. The examiner relied upon the lack of hearing loss during service, the time span between the Veteran's separation from service and first diagnosis of bilateral hearing loss in March 2007, and the Veteran's post-service exposure to noise, which the Veteran has stated included appropriate hearing protection, to conclude that no nexus exists between the Veterans hearing loss and conceded in-service noise exposure. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In Training Letter 10-02 (issued in March 2010) regarding the adjudication of claims for hearing loss and tinnitus, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. It was also noted that delayed-onset hearing loss and tinnitus must be considered. See Training Letter 10-02 (issued in March 2010). In this case, the Board finds the VA medical opinion inadequate. The examiner relied on a lack of diagnosis in service as well as a delayed diagnosis to conclude the Veteran's hearing loss is not related to his service. The examiner did not consider the Veteran's lay statements of hearing loss, which the Veteran has maintained began before he separated from service. The rationale for the examiner's unfavorable opinion is contrary to the Court's holding in Hensley and VA Training Letter 10-02, that the Veteran's claims of experiencing symptoms cannot be dismissed because of a lack of contemporaneous evidence especially in cases involving delayed-onset bilateral hearing loss. In light of above, the record for review by the Board remains inadequate for the purpose of readjudicating the Veteran's appeal. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain any outstanding VA treatment records that are not already associated with the claims file. 2. Obtain an addendum opinion to determine the etiology of the Veteran's bilateral hearing loss with an examiner other than the March 2021 examiner. The complete file must be made available to the examiner for review in conjunction with the examination. The examiner is asked to address the following: (a.) Whether it is at least as likely as not, (i.e., a 50 percent probability or greater), that the Veteran's current bilateral hearing loss is related to his period of military service, or to any incident therein, to include as due to noise exposure. (b.) The examiner should further opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the Veteran's hearing loss was caused by or aggravated by his newly service-connected tinnitus. (c.) If the audiologist opines that Veteran's hearing loss is the result of any other process not related to in-service noise exposure, a rationale must be provided to explain fully why the current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. He/she should comment on the likelihood that the Veteran's current bilateral hearing loss is due to post-service intercurrent causes wholly unrelated to his military service, such as post-service employment, or age-related issues. The examiner is reminded that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for granting 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The audiologist must not rely solely on the fact that the Veteran's bilateral hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. He or she should also take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure, the onset of hearing loss, and continuity of hearing loss since service. If the examiner rejects the Veteran's reports, he/she should provide a rationale for doing so. The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. After the above actions are completed, readjudicate the issue on appeal and if the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.