Citation Nr: 21041361 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-58 740 DATE: July 8, 2021 REMANDED Service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from March 1975 to March 1981. This matter comes before the Board of Veteran's Appeals (Board) from a March 2015 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded the matter in August of 2019 for an addendum opinion. 1. Service connection for a bilateral hearing loss disability is remanded. The Veteran contends that his sensorineural hearing loss was caused by aircraft noise on the flight deck. Sensorineural hearing loss, as an organic disease of the nervous system, is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R.§ 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran demonstrated bilateral hearing loss disability for VA purposes at a March 2015 VA examination, at which time he was diagnosed with sensorineural hearing loss in both ears. March 5, 2015, document labeled C&P Exam, p.3. At the same exam, he was also diagnosed with tinnitus. Id. at 5. The medical examiner opined that while his tinnitus was at least as likely as not connected to the Veteran's service, his hearing loss was not. Id. at 4. The examiner reasoned only that because the Veteran's entrance and separation exams showed normal hearing, the Veteran's hearing loss was not at least as likely as not connected to his service. See Id.; February 11, 1981 exam, document labeled STR - Medical, p.2. However, as the Veteran notes, his entrance exam was not a complete exam as it did not test at 3000 Hertz. November 22, 2016, document labeled Form 9, p.2. The 2015 examiner also did not address a 1979 in-service treatment record that demonstrated hearing problems meeting the requirements of bilateral hearing loss for VA purposes. March 8, 1979 hearing exam, document labeled STR Medical, p.51. In August 2019, the Board remanded for an addendum opinion, asking the examiner to specifically address the March 1979 STR demonstrating hearing loss. In December 2019, a different audiologist clarified in an addendum opinion that "[g]iven the ongoing reports of sinusitis and middle ear problems found in the STRs, and lack of bone conduction measures completed on the 3/8/79 exam, presence of effusion at that time cannot be ruled out, but the loss did not persist to any of the other exams." December 3, 2019, document labeled C&P Exam, p.2. The audiologist continued by pointing out that rhinitis and sinusitis were persistent throughout the Veteran's medical records and are in no way connected to hazardous noise exposure. Finally, based on a comprehensive study by the Institute of Medicine (IOM) in 2006 that stated a delayed onset of noise-induced hearing loss is unlikely, as well as the Veteran's entrance and separation exams, the audiologist concluded that the Veteran's hearing loss was less likely as not connected to his service. December 3, 2019, document labeled C&P Exam, p.2. It does not appear from the record that the audiologist examined or spoke with the Veteran at that time. The Board finds the 2019 examiner's report is inadequate for several reasons. While the examiner addressed the March 1979 hearing loss, the examiner did not address the Veteran's statements regarding his hearing loss. During service, the Veteran's berth was under the flight deck. March 6, 2015, document labeled C&P Exam, p.9. He was regularly exposed to aircraft noise. Id. The Veteran has stated that he had little to no hazardous noise exposure following service. Id. at 6. The Veteran reports that he has had noticeable symptoms of hearing loss dating back at least 10 years. Id. at 8. The Veteran reports that his tinnitus, which has been determined to be service connected, had its onset during service. Id. at 5. Moreover, the 2019 examiner opined that effusion at the time of service could not be ruled out. December 3, 2019, document labeled C&P Exam, p.2. Additionally, the 2019 examiner indicated that the medical evidence and current science found the delayed onset of noise-induced hearing loss unlikely and referenced the 2006 IOM study. Id. However, the Board notes that, in McCray v. Wilkie, 31 Vet. App. 243 (Vet. App. 2019), the United States Court of Appeals for Veterans Claims (Court) found that the 2006 IOM study contained contradictory findings. McCray highlighted that the study found: "based on current knowledge of cochlear physiology there was no significant scientific basis for the existence of delayed-onset hearing loss." Id. at 256 (internal citations omitted). However, as McCray further instructs, the IOM report also 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." Id. (internal citations omitted). Finally, the previous examiner determined it was "less likely than not" that the Veteran's hearing loss was connected to service. The language of the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v.Lynch McDonough, 2021 U.S. App. LEXIS 16533 (Fed. Cir. June 3, 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. Id. For these reasons, a new VA medical opinion is needed. The matters are REMANDED for the following action: 1. The RO should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The RO should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After the RO associates outstanding relevant records with the file, the RO should obtain another medical opinion addressing the Veteran's hearing loss claim. The RO should provide the examiner with a complete copy of the claims file to include this remand order. The RO should ensure the examiner's opinion addresses the following concerns: (a) Provide an addendum opinion, to include a new examination if necessary, if and when the Veteran can attend one, from an appropriate clinician as to whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the current bilateral hearing loss disability (i) began during service; (ii) manifested to a compensable degree within one year of separation from service; or (iii) was noted in service with continuity of symptomatology since service. If still relying on the 2006 IOM study, the examiner is asked to state why the conclusions of that study apply to this Veteran, given its contradictory aspects noted by the United States Court of Appeals for Veterans Claims in McCray v. Wilkie, 31 Vet. App. 243 (Vet. App. 2019). McCray instructs that the IOM study concluded that definitive studies on delayed onset hearing loss had not been performed at the time, and that further study was required. The examiner should consider the March 1979 findings in service treatment records which show evidence of hearing loss. The examiner should also consider the Veteran's lay statements regarding hearing loss symptoms. See March 2015 C&P Exam, p. 9 (berth under flight deck, regularly exposed to aircraft noise, little or no hazardous noise exposure following service, noticeable symptoms dating back at least 10 years, tinnitus began during service). Finally, the examiner should consider the December 2019 VA examiner's statement that effusion at the time of service could not be ruled out. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, she should expressly indicate the same and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The VA examiner should addresses the significance of a lack of test results at 3000 Hertz on the Veteran's enlistment examination hearing test and opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's accounts of hearing loss beginning during his military service are consistent with progressive hearing loss at 3000 Hertz. The examiner should support the opinion with reference to pertinent evidence including medical literature and lay statements about progressive or delayed onset hearing loss. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.