Citation Nr: 22015100 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-01 233 DATE: March 16, 2022 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to October 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Jurisdiction is currently with the Appeal Resource Center (ARC). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in July 2019 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which times it was remanded for further development. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss as a result of acoustic trauma related to his military occupational specialty (MOS) as an air traffic controller. Specifically, he contends that he was exposed to loud plane engine noise (SACs, MP-52s, and KC-135s) without hearing protection. He further contends that he was required to wear headsets which did not have noise control. In this regard, a December 2021 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the Board finds the December 2021 VA examiner opinion inadequate to decide the Veteran's claim for service connection for bilateral hearing loss. First, the Veteran's service treatment records (STRs) document ear pain and popping and the December 2021 VA examiner did not address this evidence in rendering his opinion. The Board notes that the September 2021 Board remand directives specifically requested that the examiner address this evidence and a remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. See Stegall v. West, 11 Vet. App. 268 (1998). Second, the examiner improperly relied on the absence of an in-service hearing disability. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Third, the examiner failed to explain why no significant permanent shift in thresholds beyond test variability from entrance to separation is evidence of no permanent auditory damage on active duty from conceded noise. In light of the aforementioned inadequacies of the December 2021 VA examiner opinion, the Board finds that an addendum opinion must be provided on remand. See Bar v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the claims file to the VA examiner who conducted the Veteran's December 2021 audiological examination, if available. If that examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that any current hearing loss disability had its onset in, or is related to any in-service disease, event, or injury, including noise exposure, including on a delayed onset theory of causation? Please explain why or why not. (b.) Is it at least as likely as not that any current sensorineural hearing loss manifested to a compensable degree within one year of service discharge? Please explain why or why not. (c.) The examiner should specifically address the Veteran's contention that he has bilateral hearing loss as a result of acoustic trauma related to his MOS as air traffic controller. Specifically, exposure to loud plane engine noise (SACs, MP-52s, and KC-135s) without hearing protection and loud headsets without noise control. The examiner should also address pain in ear and popping documented in the Veteran's STRS; the significance of the line of research conducted by Dr. Kujawa; and the articles of record "Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss" and "Now Hear This (Before You Can't). (d.) The audiologist should review the January 2016, January 2020, and December 2021 VA audiological examination reports and the Veteran's July 2019 hearing testimony. The Veteran testified during the July 2019 Board hearing that he was exposed to significant noise after service, but he wore hearing protection. He further testified that he did not seek treatment for hearing loss until it bothered him. (e.) The examiner is advised that the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after the Veteran's discharge from service (delayed on-set hearing loss). (f.) If the examiner determines that the Veteran's bilateral hearing loss is not related to military noise and due to some other etiology, he should explain why that is so and state the other etiology. (g.) In formulating a medical opinion, if relying to any extent upon the IOM study, the examiner must (a) identify the medical text's qualifying or contradictory aspects; and (b) 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 tinnitus is as likely as not etiologically related to in-service noise exposure. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.