Citation Nr: 21041360 Decision Date: 07/09/21 Archive Date: 07/08/21 DOCKET NO. 12-10 781 DATE: July 9, 2021 ISSUE Entitlement to service connection for a right-ear hearing loss disability. REMANDED Entitlement to service connection for a right-ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served from August 1974 to August 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board in November 2013, June 2019 and November 2020. In the November 2013 remand, the AOJ was directed to obtain treatment records from the Ashland, Kentucky, Federal Correction Institution and to schedule a VA Hearing Loss examination. In the June 2019 decision, the Board denied the Veteran's claim for entitlement to a service connection for a left ear hearing loss disability and remanded the matter to the AOJ for a new Hearing Loss examination with respect to the Veteran's right ear. In the November 2020 decision, the claim was remanded for a new VA examination. For reasons that will be explained below, the Board finds that an addendum opinion is required with regards to this Veteran's claim. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). Entitlement to service connection for a right ear hearing loss disability is remanded. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability because he was exposed to gunfire on a daily basis as part of service on the Ranger Airborne Battalion Unit. See January 20, 2011 Lay Correspondence; See also, June 26, 2019 Lay Correspondence. The Veteran's DD 214 indicates that he served as an Infantryman during service. His decorations include Expert infantryman Badge, National Defense Service Medal, Parachute badge and Expert Rifle. See DD-214. The Board notes that the Veteran service treatment records indicate normal hearing at his entrance and separation examinations in December 1973 and May 1977 respectively. See December 21, 1973 Report of Medical Examination (entrance); See also May 23, 1977 Report of Medical examination (separation). In this case, the Veteran was also afforded intermittent audiological testing in November 1974 and March 1976. See November 19, 1974 Report of Medical Examination re: right ear audiometric results (30/35/35/-/35); See also, March 4, 1976 Report of Medical Examination. Pursuant to the Board's November 2020 remand, the Veteran was afforded a December 2020 Hearing and Loss examination. The December 2020 examiner opined against a nexus to service. The examiner reasoned that the claim file shows no significant permanent shift in hearing thresholds beyond test variability from entrance (January 2, 1973) to separation exam (May 23, 1977), which is objective evidence of no permanent auditory damage on active duty, and the separation exam shows hearing that is within normal limits per VA standards. The examiner also reasoned that although noise exposure is conceded given the MOS of Infantryman which has a HIGH probability of hazardous noise, 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 examiner also reasoned that the Veteran reports he is a right-handed shooter, adding that "it is commonly known that shooters of shoulder arms/ long barrel guns have an asymmetric hearing loss with a greater deficit in the ear OPPOSITE from which the gun is fired. Because most people are right-handed and fire from the right shoulder, the majority of shoulder firearm shooters show a deeper "4,000 Hz notch" in the left ear. This may seem counter intuitive, but the ipsilateral ear is somewhat protected by the angle of the head when shooting. The contralateral ear is more exposed to the sound of the muzzle blast. In this case, you can see there was +15 dB STS (standard threshold shift) in the Veteran's left ear at 4kHz which makes sense for a Right-handed shooter. There is no evidence to support a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure." See December 14, 2020 Medical Opinion pg. 2. The Board observes that the examiner is referencing the Veteran's December 1973 entrance and May 1977 separation audiology examinations noted below. December 21, 1973 entrance examination audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 25 10 5 15 Left Ear Hertz 500 1000 2000 3000 4000 30 15 5 5 May 23, 1977 separation examination audiometric results were as follows. Right Ear Hertz 500 1000 2000 3000 4000 25 10 10 10 Left Ear Hertz 500 1000 2000 3000 4000 20 10 10 20 As stated above, the December 2020 examiner reasoned that in this case, you can see there was +15 dB STS (standard threshold shift) in the Veteran's left ear at 4kHz which makes sense for a Right-handed shooter. There is no evidence to support a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure. See December 15, 2020 Medical Opinion, pg. 2. For the following reasons, the Board does not find this opinion to be fully adequate for adjudication purposes. First, in Hensley v. Brown, 5 Vet. App. 155, 160 (1993), the Court found that the absence of hearing loss in service is not necessarily fatal to a claim for compensation for post-service hearing loss disability. Here, the examiner largely based their opinion and reasoning on the fact that the Veteran's hearing was normal during audiological testing and did not show auditory damage in service The examiner illustrates this point by referencing +15 decibel standard threshold shift in the Veteran's left ear when comparing his entrance and separation examinations. In other words, the examiner does not see any standard threshold shift in the Veteran's right ear when comparing his entrance and separation examinations. Second, the Board observes that for an opinion to be adequate for rating purposes, it must include consideration of the Veteran's statements, be based on factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner did not address whether the hearing changes noted in service are the early indication of subsequently found right ear hearing loss or are not significant changes. See November 19, 1974 Report of Medical Examination re: right ear audiometric results: 30/35/35/-/35. Third, while the examiner noted that it is commonly known that shooters of shoulder arms/ long barrel guns have an asymmetric hearing loss with a greater deficit in the ear OPPOSITE from which the gun is fired, the examiner does not cite to any medical literature to support this reasoning. Fourth, as requested in the Board's November 2020 remand, the examiner fails to adequately address the Veteran's MOS and exposure to inservice noise, specifically including the Veteran's report of noise exposure as a right-handed shooter. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, an addendum opinion is necessary to address these deficiencies. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). Accordingly, this matter is REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner of appropriate expertise to ascertain the etiology of the Veteran's current bilateral hearing loss. (If additional examination is determined necessary, such examination should be conducted.) The audiologist is to be provided access to the Veteran's electronic claims file, including a copy of this Remand. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. See January 20, 2011 Lay Correspondence; See also, June 26, 2019 Lay Correspondence. Any indicated diagnostic tests and studies should also be accomplished, if needed. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and in-service noise exposure, and such lay statements must be taken into account in formulating the opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. After a thorough review of the medical history including the Veteran's lay statements, the VA audiologist must opine whether it is at least as likely as not (50 percent or higher degree of probability) that any hearing loss and/or manifested in-service or is otherwise causally or etiologically related to military service, to include conceded in-service noise exposure and including the Veteran's report of noise exposure as a right-handed shooter. The examiner is advised that a finding that the Veteran's hearing loss was not significant enough to be considered disabling at separation is not, by itself, a sufficient rationale for an opinion that a relationship to service is less likely than not. The significance, if any, between recorded findings on entrance and separation examinations as well as periodic examinations throughout service should be discussed, even if the differences are minimal. For purposes of this question, the examiner must address the November 19, 1974 Report of Medical Examination re: right ear audiometric results: 30/35/35/-/35. If the examiner opines that any threshold shifts recorded during the Veteran's service are not related to his current hearing loss, a full rationale should be provided. It should specifically be indicated whether the type of hearing loss now found is the type normally seen with acoustic trauma, as opposed to some other cause such as infection or advancing age. Note: When responding, whether favorably or unfavorably to the claims, it is essential the examiner provide explanatory rationale for the opinions, preferably citing to supporting evidence in the file and/or accepted medical authority. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.