Citation Nr: 22013282 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-45 003 DATE: March 9, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to May 1986. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Board remanded this matter for further evidentiary development in July 2019 and March 2021. Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, the Board finds an additional remand is warranted to comply with the Board's March 2021 remand. Following the March 2021 remand, another VA opinion was obtained in April 2021. However, the Board finds the April 2021 VA opinion does not substantially comply with the March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In the March 2021 remand order, the Board specifically requested the VA examiner to discuss the Veteran's contention that since leaving the military he has not held any position that would have exposed him to such high levels of noise. See December 2015 VA Form 9 and April 2021 Board Remand at 3. The Board also requested the VA examiner to address the statement in the 2005 Institute of Medicine (IOM) study that an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure, if the examiner determined that the study did not support a delayed onset theory. See April 2021 Board Remand at 4. A review of the April 2021 opinion illustrates that the examiner did not address either of these matters. Thus, an additional VA opinion is required. See Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records since March 2021. 2. Obtain a medical opinion from a qualified clinician for the Veteran's bilateral hearing loss claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset in or is otherwise related to service, to include as a result of conceded acoustic trauma therein? In addressing this question, the reviewing clinician must discuss and accept as true: (1) that the Veteran sustained acoustic trauma in service; (2) that as an Armor Crewman/Tank Commander the Veteran was routinely exposed to main gun fire from various battle tanks without hearing protection (December 2015 VA Form 9); (3) that as a crewmember he was constantly exposed to loud and long durations of noises during operations of the Armor equipment (Id.); and (4) that since leaving the military he has not held any position that would have exposed him to such high levels of noise (Id.) and determine, based on the same, whether a nexus between the Veteran's hearing loss and service is "medically plausible," while considering the fact that tinnitus has been attributed to service and that "an associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. (b.) The reviewing clinician should further address the theory of delayed onset hearing loss, to include the statement by the Veteran's representative in June 2019 that an Institute of Medicine (IOM) study supports a link between noise exposure as a young adult and later findings for hearing loss. i) The representative provided the following language from the IOM study as supporting the claim: "Young adults with a slight noise-induced high-frequency hearing loss (e.g., 1530 dB HL at 6000 Hz), one not likely to cause much difficulty with communication if present at the time a young adult might be discharged from military service, will likely exhibit greater hearing loss as they age than young adults with normal hearing (0 dB HL) at discharge." Please discuss this statement in relation to the Veteran's medical history. ii) If, upon addressing the IOM study, the reviewing clinician determines it does not support a delayed onset theory, including based on the statement that it is "unlikely" that the onset of hearing loss begins years after noise exposure, the examiner must also address the statements in the study that: "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure;" that "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 that "definitive studies to address this issue have not been performed." A complete rationale is requested for any opinion rendered. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the reviewing clinician is unable to opine as to etiology of hearing loss without resorting to speculation, please provide a basis for reaching that conclusion. N. Breitbach Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.