Citation Nr: 22014393 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 20-05 793 DATE: March 12, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) RO. In December 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 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). During the course of this appeal, a June 2021 rating decision established service connection for tinnitus. Therefore, the claim of entitlement to service connection for tinnitus, previously the subject of the appeal, has been resolved in the Veteran's favor, and there is no longer a case in controversy for appellate consideration as to that claim. 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for bilateral hearing loss. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current bilateral hearing loss disability is the result of noise exposure in service. Noise exposure in service has been conceded by VA. At a May 2021 VA examination, the examiner found that it was not at least as likely as not (50 percent probability or greater) that bilateral hearing loss was caused by noise exposure in service. The examiner explained that review of the records showed no significant permanent shift in hearing thresholds beyond test variability from enlistment to separation from service. The examiner concluded that there was no objective evidence of permanent auditory damage from noise exposure while on active duty. In addition, the examiner found there were no reports of complaints or treatment for hearing decrease in the service medical records or at separation. While the noise exposure is conceded, 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. The examiner stated there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The Veteran reported post-service occupational and recreational noise exposure. The examiner cited to an Institute of Medicine (IOM) report from 2005 that stated that, based on current understanding of auditory physiology, there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after that noise exposure. The examiner also cited to the article "Adding Insult to Injury: cochlear Nerve Degeneration After 'Temporary' Noise-Induced Hearing Loss" by Dr. Sharon G. Kujawa. The article addressed the possibility of late onset hearing loss as a result of noise exposure. This article found that despite the temporary return to hearing after noise exposure, hearing damage resulting in degeneration may not occur until several years later. However, the examiner stated that some might find that article and the IOM conflicting, but that the report by Dr. Kujawa did not state specifically how many "years" hearing degeneration can occur after noise exposure. The examiner agreed with the IOM report, finding that the onset of hearing loss was immediate after noise exposure. As the May 2021 VA examiner relied on the absence of symptoms or treatment in service for the negative opinion concerning the demonstrated hearing disability, the Board finds that the opinion is incomplete. Thus, remand is necessary for an adequate etiology opinion regarding bilateral hearing loss. Importantly, the Board notes that VA attention has been directed to a sponsored IOM report on delayed onset hearing loss. While the report discussed that based on current understanding of auditory physiology, there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after that noise exposure, that statement does not indicate the full extent of the report's findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). Therefore, the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences or failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Then, schedule the Veteran for a VA audiology examination, with an examiner who has not previously examined the Veteran, to diagnose and obtain an opinion regarding the etiology of any right or left ear hearing loss disability. The examiner must review the claims file, to include this Remand in its entirety; the Veteran's lay statements, including hearing testimony, concerning noise exposure in service and hearing loss symptoms during and since service; the previous VA examination; and the IOM report concerning an individual's delayed awareness on the effects on hearing from noise, and the onset of current symptomatology, and should indicate review of the file in the examination report. The Board notes that exposure to noise during service has been conceded by VA. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any portion of the Veteran's hearing loss is etiologically related to active service or any event, disease, or injury during service, including whether any hearing disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include tinnitus, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include tinnitus. The examiner should specifically consider the findings at entrance to service and at separation from service and should explain why those findings do or do not represent a finding of hearing loss during service. The examiner should specifically opine whether the 20 decibel finding at 4000 Hertz for the right ear at separation from service represented hearing loss at that time. The examiner is advised that VA has conceded noise exposure in service and a current hearing loss diagnosis. The examiner is further advised that the Veteran is competent to report his symptoms during and since service and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based on the lack of any in-service records of hearing loss. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Tsao, 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.