Citation Nr: 21041012 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-31 409 DATE: July 7, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, the Board initially denied the Veteran's claim of entitlement to service connection for bilateral hearing loss in January 2019. See January 2019 BVA Decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), and in December 2019, the Court granted the parties' Joint Motion for Remand (JMR), which vacated the Board's January 2019 decision and remanded the matter for additional development and readjudication. See December 2019 CAVC Decision. This matter was also before the Board in April 2020 and September 2020, when it was remanded for additional development. See April 2020 BVA Decision; September 2020 BVA Decision. Entitlement to service connection for bilateral hearing loss is remanded. As noted above, the Board most recently remanded the Veteran's claim in September 2020 to obtain an addendum medical opinion regarding the nature and etiology of the claimed disorder. In this regard, the Board asked the examiner to address a May 2015 article cited by the Veteran's representative, Aging after Exposure: Acceleration of Cochlear Synaptopathy in "Recovered" Ears, which states that initially reversible noise damage can have dramatic long-term consequences in amplifying age-related sensorineural hearing loss and that a single synaptopathic exposure has effects on the aging ear which continue long after the damaging noise has stopped. See September 2020 BVA Decision. VA obtained the requested addendum medical opinion in March 2021. After reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion, the examiner noted that the Veteran had normal hearing sensitivity at his separation examination with no significant threshold shifts. In this regard, the examiner stated that the audiogram is the objective standard for noise injury, and as a result, the absence of hearing loss or threshold shifts at separation indicated that there was no evidence to indicate that the Veteran's in-service noise exposure caused a permanent noise injury affecting hearing sensitivity. The examiner further stated that she reviewed the May 2015 article cited by the Veteran but reported that the standard of care in the medical community did not accept the concept of delayed onset hearing loss based on one study performed on mice. In this regard, the examiner acknowledged that the 2006 IOM study found evidence from longitudinal studies in lab animals or humans to be insufficient to determine whether permanent noise induced hearing loss could develop much later in one's lifetime, long after the cessation of noise exposure. However, the examiner noted that the study also found that anatomical and physiological data available on the recovery process following noise exposure showed that it was unlikely that such delayed effects occurred. The examiner further reported that no currently available scientific evidence in human subjects validated the theory of delayed-onset hearing loss due to noise exposure and stated that the generalization of animal studies to humans was tenuous at best. See March 2021 C&P examination. In a June 2021 appellate brief, the Veteran argued that the March 2021 VA examination was inadequate pursuant to McCray v. Wilkie, 31 Vet. App. 243 (2010). Specifically, the Veteran noted that the examiner cited the 2006 Institute of Medicine (IOM) report as representing the medical community's consensus that delayed-onset hearing loss due to in-service noise exposure was unlikely and found that the generalization of animal studies to humans was tenuous at best. To this end, the Veteran argued that the March 2021 VA examiner failed to cite any specific medical treatise or journal articles to support the latter finding and did not address how the IOM study's text's qualifying or contradictory aspects may affect the probative value. See June 2021 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). In McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court highlighted contradictory findings regarding delayed-onset hearing loss in the examiner's cited IOM report. Specifically, the VA medical opinion involved in the McCray case noted that the IOM report concluded, in part, that there was no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the Court also noted that the IOM report 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." The Court determined that the medical text's qualifying or contradictory aspects might affect the probative value and adequacy of any ensuing medical opinion that relied on that text. Here, the March 2021 VA examiner relied on the finding from the IOM report that delayed onset hearing loss did not occur but did not address contradictory findings. As such, in light of McCray, a remand is required to obtain an addendum medical opinion that (a) identifies the medical text's qualifying or contradictory aspects (i.e. 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 (b) explains why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive as to the question of whether it is at least as likely as not that the Veteran's delayed onset hearing loss is etiologically related to any in-service noise exposure. The matter is REMANDED for the following action: As the issue under consideration poses a medical question of complexity, an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 38 U.S.C. § 5109. Obtain an opinion by an appropriately qualified examiner to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the bilateral hearing loss is causally or etiologically related to his service, to include as due to loud noise exposure and to his military occupational specialty (MOS) as a Boiler Repairman. If relying to any extent upon the 2005/2006 IOM study, the examiner must (a) identify the medical text's qualifying or contradictory aspects (i.e. 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 (b) explain why the contradictory aspects or conclusions in the IOM study are less persuasive as to the question of whether it is at least as likely as not that the Veteran's delayed onset hearing loss is etiologically related to any in-service noise exposure, to include as due to his MOS as a boiler repairman. The examiner should also specifically address the May 2015 article cited by the Veteran's representative, Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in "Recovered" Ears, which indicates that initially reversible noise damage can have dramatic long-term consequences in amplifying age-related sensorineural hearing loss and that a single synaptopathic exposure has effects on the aging ear which continue long after the damaging noise has stopped. (Continued on the next page) If the examiner relies upon treatise or medical literature for support, citations to such must also be provided. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination, including this Remand. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.