Citation Nr: 21042776
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 15-07 641
DATE: July 13, 2021

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1972 to November 1975.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

The Board most recently remanded the claim in June 2018 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998).

The claim is remanded for another medical opinion because the April 2019 opinion provided on remand is inadequate. The examiner offered a negative nexus opinion and as rationale noted a lack of significant threshold shift in hearing loss at the time of separation and a 2005 IOM report ("Noise and Military Service: Implications for Hearing Loss and Tinnitus") that was referenced to refute the theory of delayed onset hearing loss. The United States Court of Appeals for Veterans Claims (Court) has considered the IOM study and noted that the IOM report includes inconsistencies. The April 2019 examiner did not discuss the IOM study beyond the reference to it; there was no discussion of the qualifying findings within that report. McCray v. Wilkie, 31 Vet. App. 243 (2019)

The matters are REMANDED for the following action:

Obtain an opinion from an appropriate clinician on the likely etiology of the Veteran's hearing loss.  Copies of all pertinent records must be made available to the examiner for review. Based on a review of the record, the examiner must answer the following:    

Is it at least as likely as not (50 percent probability) that the Veteran's hearing loss disability was incurred in or is otherwise related to service, to include conceded in-service noise exposure to military equipment?  

Should the examiner rely to any extent upon the IOM study, noted above, the examiner must (i) identify the medical text's qualifying or contradictory aspects ("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 (ii) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to in-service noise exposure. The examiner may discuss this Veteran's documented complaints and clinical history in support thereof, but must not reject medical history unless otherwise incongruous with the record and explaining why any history is rejected.  

The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion.   

A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why.

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.E. Bresler, 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.