Citation Nr: 22005303 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 16-50 003 DATE: February 1, 2022 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1970 to January 1978. This matter come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for bilateral hearing loss. The Veteran disagreed with that determination and subsequently perfected an appeal of the issue to the Board. In April 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The instant matter has twice previously been before the Board. In April 2019, the Board remanded the matter for further development, to include providing the Veteran with a VA audiological examination. The matter was then again before the Board in February 2021, at which time it was remanded for consideration in the first instance by the agency of original jurisdiction (AOJ) of evidence added to the claims file since the issuance of a September 2019 supplemental statement of the case (SSOC), per the Veteran's request. In March 2021, the AOJ issued an SSOC in which it continued to deny the Veteran's claim for service connection for bilateral hearing loss. The matter was thereafter returned to the Board for further appellate consideration. Unfortunately, the Board finds it necessary to again remand the claim on appeal even though such will, regrettably, further delay an appellate decision on this matter. The Board observes that a remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. The Board further notes that when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA medical examination or opinion is adequate if it is "thorough and contemporaneous," considers the veteran's prior medical examinations and treatment, and "describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Indeed, a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl, 21 Vet. App. at 124; see Nieves-Rodriguez, 22 Vet. App. at 304 ("most of the probative value of a medical opinion comes from its reasoning"). A review of the record shows that the Veteran underwent a VA audiological examination in April 2014, at which time he was diagnosed with sensorineural hearing loss. At that time, the VA audiologist opined that it was less likely than not that the Veteran's bilateral hearing loss had its onset in, or was otherwise related to, service. However, as discussed by the Board in the April 2019 remand action, because the VA audiologist failed to discuss all in-service audiograms of record, the examination and opinion report was inadequate to rely upon. The Board thus remanded the matter for the AOJ to obtain an addendum medical opinion. Regarding the opinion to be obtained on remand, the Board instructed the VA examiner was to consider audiograms dated in July 1970, December 1973, and December 1977. The Board further instructed that with regard to the July 1970 entrance audiogram, the examiner was to consider the data under both standards set by the American Standards Association (ASA) and by the International Standards Organization (ISO)-American National Standards Institute (ANSI). An addendum opinion was obtained in July 2019, a review of which shows that the VA audiologist reviewed the Veteran's in-service audiograms dated in July 1970, December 1973, and December 1977, as well as an undated audiogram. Notably, with regard to the July 1970 audiogram, the audiologist stated that it was unnecessary to consider the Veteran's hearing thresholds under both the ASA and the ISO-ANSI standards because "it was mandated that testing administered after 10-31-1967 utilized[d] ISO-ANSI." The Board points out that historically, the Board considered audiometric results based on the approach that prior to November 1967, audiometric results were consistent with standards set forth by the ASA, and that since November 1, 1967, those standards were set by the ISO-ANSI. However, as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units, where an audiogram is conducted between January 1, 1967 and December 31, 1970, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Here, it is unclear whether the July 1970 thresholds were recorded using ASA or ISO-ANSI standards, Board policy dictates that the recorded metrics be considered under both standards. In this regard, the Board points out that the VA audiologist is not free to ignore the Board's remand directives. Accordingly, because the VA audiologist did not consider the July 1970 audiogram data under both ASA and ISO-ANSI, the Board finds that the addendum opinion report does not comply with the terms of the Board April 2019 remand directives. Further, in providing a negative nexus opinion, the VA audiologist noted that the Veteran's hearing was within normal limits at the time of enlistment and separation and that there was no threshold shifts greater than normal during military service. The audiologist then discussed that the Institute of Medicine (IOM) has stated 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." The audiologist noted that the IOM's conclusion was based on their current understanding of auditory physiology, in that a prolonged delay in the onset of noise-induced hearing loss was "not likely". The audiologist opined, therefore, that based on objective evidence (the audiograms at enlistment and separation), it is less likely than not that the Veteran's current hearing loss is due to or a result of in-service noise exposure. In McCray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) reviewed a Board decision that adopted a medical opinion citing the same IOM report at issue here for the proposition "that noise-induced hearing loss occurs immediately and there is no scientific support for delayed onset noise-induced hearing loss." 31 Vet. App. 243, 250 (2019). In that case, the VA examiner had also referenced what was determined to be qualifying language in the IOM report. The Court thus held that "where the veteran's arguments concerning apparently qualifying or contradictory statements in the IOM report were of record when the Board made its decision, the Board was obligated to address the issue when assessing the probative value and adequacy of the medical opinion that relied on the IOM report." Id. at 257-58. In other words, the Board must address qualifying or contradictory aspects of the medical article when the issue is expressly raised by the veteran or reasonably raised by the evidentiary record. Reviewing the portions of the IOM study cited to by the VA audiologist in this case, the Board notes that it appears to contain contradictory information. Indeed, the audiologist first noted that the IOM stated there was "insufficient scientific basis" upon which to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure, but then relied on the IOM panel's conclusion that delayed-onset hearing loss was "not likely". It is unclear from the evidence cited to by the VA audiologist how the panel arrived at the conclusion that delayed-onset hearing loss was unlikely. Indeed, although it is stated there was no evidentiary or scientific support for the delayed-onset theory of hearing loss, there is nothing in the evidence cited to by the VA audiologist to indicate that it had been ruled out. As such, the Board finds that the IOM report alone is insufficient to support the audiologist's conclusion that it is less likely than not that the Veteran's hearing loss is related to his on-service noise exposure. Accordingly, as it would appear that the VA audiologist's negative nexus opinion was based solely on the IOM report and lack of evidence demonstrating hearing loss in service in concluding that the Veteran's hearing loss is related to service, and because the VA audiologist did not consider the July 1970 audiogram data under both ASA and ISO-ANSI standards, as directed to do so by the Board, the Board cannot conclude that the examination report is sufficient to rely upon in this case or that it complies with the terms of the Board prior remand. Nieves-Rodriguez and Stefl, both supra. Accordingly, another remand is necessary for the AOJ to obtain an adequate medical opinion. See Barr and Stegall, both supra. Regarding the opinion to be obtained on remand, the Board notes that the Veteran recently submitted multiple web articles regarding noise-induced hearing loss. The reviewing clinician will be directed to discuss these articles as part of the opinion of the opinion provided. The matter is REMANDED for the following action: Arrange to obtain from an appropriate VA clinician a medical opinion addressing the etiology of the Veteran's right and left ear hearing loss, based on claims file review (if possible). Only arrange for the Veteran to undergo a VA examination if deemed necessary in the judgment of clinician designated to provide the addendum opinion. After reviewing the record (and examining the Veteran if deemed necessary) the clinician should provide an opinion as to whether it is at least as likely as not that the Veteran's current hearing loss hearing loss had its onset in service or is otherwise related to his military service. In so concluding, the audiologist must take into consideration the lay statements of record concerning the onset and continuity of hearing loss. In answering the above questions, the clinician is specifically advised that Board policy dictates that where an audiogram is conducted between January 1, 1967 and December 31, 1970, and it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units, the recorded metrics will be considered under both standards and the unit measurements most favorable to the Veteran's appeal will be relied upon. Thus, the clinician is directed to state whether the July 1970 audiogram clearly states whether it is recorded in ASA or ISO-ANSI units. If the audiogram does not so state, then the clinician must consider values in both units, and explain the relevance or lack thereof of considering the values in each standard. Also, if the clinician relies on the IOM study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, the clinician must explain how the qualifying and contradictory statements in the IOM report impact the clinician's ultimate conclusion as to whether the Veteran's current hearing loss is related to service. The clinician is also directed to consider and discuss the web articles submitted by the Veteran in March 2021. The clinician must state whether or not such article support a finding of service connection in this case and should explain his/her conclusion in this regard. The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician should address the pertinent evidence in the service treatment records, post service medical records and examinations, and the lay evidence of record. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.