Citation Nr: 22016005 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-06 673 DATE: March 21, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to April 1971. This case came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA). The Veteran requested Decision Review Officer and Board hearings; however, he cancelled those requests in December 2013 and June 2016 written statements and has not since requested any hearing. Thus, his hearing requests are considered withdrawn. The Board remanded the case for further development in August 2018. In a December 2019 decision, the Board denied the above claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties that same month and remanded the case to the Board. In January 2021 the Board then remanded the case for further development consistent with the Joint Motion and it has since returned to the Board for appellate review. On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claims. In the 2018 remand, the Board requested a new VA examination because it determined that the March 2011 (noted to be August 2011) VA examination opinion was inadequate. In the 2021 remand, the Board requested an additional VA medical opinion to address certain inadequacies in the resulting September 2019 VA examination report, including internally inconsistent nexus opinion language and the medical significance of additional ear problems in the service treatment records. The Veteran was afforded an additional VA examination in June 2021. The examiner determined that she was unable to provide a medical opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation. In so finding, she did address the additional service treatment records, but the opinion as written reflects similar problems that necessitated the earlier remand. In addition, the examiner did not fully contemplate the nature of the Veteran's in-service noise exposure and did not discuss his contention as to delayed onset hearing loss and tinnitus. Based on the foregoing, an additional VA medical opinion was requested. In November 2021, the same VA examiner proffered a medical opinion. The examiner was unable to proffer a clinical opinion without resort to mere speculation. The examiner noted review of the claims folder and acknowledged the November 1966 enlistment hearing exam which showed normal hearing and the whispered voice examination conducted at separation. The examiner stated that whispered hearing tests are not sensitive to high frequency hearing loss and are not considered valid measurements of hearing. Hence, any high frequency hearing loss that may have occurred at his release from service may not have been detected. The examiner noted that the Veteran presented information stating that he may have experienced delayed hearing loss by citing research from Kujawa and Liberman (2009) to support his claim. The examiner stated that research was erroneously presented to report that it is possible for hearing loss to develop long after environmental exposure. However, what this research reported was that in a mice population after noise exposure there was evidence of neuropathy, even after the threshold shifts or elevation in the thresholds, reversed back to normal. This research among mice has yet to be demonstrated or shown in human studies. The Institute of Medicine (2006) also stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure cease. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." Therefore, due to the anatomical and physiological data, it is unlikely for noise exposure to cause delayed effects, which the IOM referred delayed effects to delayed hearing loss. A medical note (dated 07/31/69) documented that the Veteran reported "ear trouble" in which the treatment was removal of excessive cerumen (wax) from the Veteran's external ear canal. Another medical note (dated 08/01/69) documented that the Veteran further reported "ear trouble," which was treated with cerumen management and medication (cortisporin) to reduce the external ear canal swelling. The twice reported "ear trouble" in 1969 was due to a temporary condition, such as ear wax in the external ear canal that would resolve the "ear trouble" once the ear wax was removed. Thus, this reported "ear trouble" would only cause a transient problem that would resolve once the ear wax and ear infection cleared. Acoustic exposure to hazardous noise was conceded. The Veteran reported significant occupational noise exposures, such as construction work and truck driving with occasional use of hearing protection. Without a valid separation hearing examination, it is difficult to determine if noise injury occurred in either ear. According to the Institute of Medicine (09/05) report on noise exposure in the military, "Noise and Military Service-Implications for Hearing Loss and Tinnitus," concluded that if documentation of the existence of hearing loss or tinnitus at discharge from the military is missing, it is nearly impossible to determine whether hearing loss or tinnitus later in life is the result of noise exposure during prior military service. It is likely/possible that aging, civilian noise exposures (i.e. noise exposure from construction work), and general health have contributed to his hearing loss and/or tinnitus. It would be speculative to allocate a degree of his tinnitus to any or each of these etiologies, or his current hearing loss to each of these military vs. non- military etiologies mentioned. As detailed, upon review of the claims folder in June and November 2021, the examiner was unable to proffer an opinion without resorting to speculation. As such, in light of the Joint Remand, the Board finds that an opinion must be sought from a different examiner regarding the etiology of his hearing loss and tinnitus. The matters are REMANDED for the following action: 1. Refer the Veteran's claims file to a VA examiner (NOT the June/November 2021 examiner) for an opinion as to the nature and etiology of his current bilateral hearing loss and tinnitus. An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and statements, as well as the March 2011, September 2019, June 2021, and November 2021 VA examination reports. The examiner should state whether it is at least as likely as not that the Veteran's hearing loss and/or tinnitus manifested in or is otherwise related to his military service, including noise exposure and any ear symptomatology therein. The examiner should also address whether the Veteran's tinnitus is caused by or otherwise related to his hearing loss. In providing this opinion, the examiner should discuss the following matters: (a) The Veteran's contention that he may have experienced delayed onset hearing loss and tinnitus as a result of his noise exposure beginning when he served aboard the USS Neosho, a fleet oiler. See August 2020 written statement with medical article in support of contention. In this regard, the Veteran has reported that he had excessive in-service noise exposure because the general quarters were two decks directly below gun turrets, resulting in exposure to artillery fire without proper head gear, and that jets were launched from the aircraft carrier stationed next to the USS Neosho. VA has acknowledged the Veteran's in-service noise exposure. See December 2009 submission, March 2011 and September 2019 VA examination reports, September 2011 notice of disagreement, September 2016 written statement; January 2014 statement of the case. This evidence also shows that he had various post-service noise exposure with and without hearing protection. The Veteran has also reported that his hearing loss and tinnitus problems have had a gradual onset since service. See, e.g., March 2011 VA examination report (reported difficulty hearing in background noise and on telephone for about 10 to 12 years; constant ringing in left ear and constant "seashell sound" in right ear that he had noticed for the past 25 to 30 years, beginning in late 1970s); September 2019 VA examination report (reported gradual onset over the years of hearing loss and tinnitus, could not determine when tinnitus began); June 2021 VA examination report (reported constant "buzzing" in both ears that onset 25 years ago). (b) The Veteran's contention that his hearing loss and tinnitus could be related to his in-service ear problems, including ear pain and swelling. See August 2018 written appellate brief and August 2020 written statement. In addressing this contention, the examiner should discuss the medical significance, if any, of the service treatment records showing that the Veteran was seen in July 1969, August 1969, August 1970, and September 1970 for ear problems as related to the current claims. (c) The examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that any current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (d) If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state whether all procurable lay and medical evidence had been considered; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (Continued on the next page) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.