Citation Nr: 22017331 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-07 641 DATE: March 24, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to November 1975. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018. A transcript of the hearing has been associated with the record. The Board most recently remanded the claim in January 2022 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that he has bilateral hearing loss that is related to his active service, to include conceded in-service hazardous noise exposure. The claim must be remanded again because the February 2022 VA opinion obtained on remand is inadequate for adjudication. Despite the Board's explanation in its prior remand that the Veteran did not have a hearing disability as defined by VA prior to service and, therefore, is presumed to have been taken into service in sound condition, the clinician again opined that the Veteran had hearing loss in the right ear at entry to service. The rationale for the negative opinion is further inadequate because the examiner improperly relied, in part, on the fact that the Veteran "did not seek support for hearing loss" within one year of separation. The lack of documented treatment cannot be the basis of a negative nexus opinion. The examiner also noted that there must be a "nexus of auditory damage" to relate the currently hearing loss to military noise exposure and "not another etiology." That appears to be an inaccurate understanding of the opinion that was requested. The question for the examiner is whether it is "at least as likely as not" that the currently diagnosed hearing loss disability is related to the Veteran's service. The examiner does appear to attribute the current hearing loss to noise exposure after service but specifically notes that the Veteran used hearing protection after service and there is no rationale provided. Finally, the examiner's discussion of the 2006 IOM study included references to studies that attempt to dispute the IOM report, but the studies done in those attempts used animal models which the examiner noted "fall short of being able to predict human responses." Thus, the extent to which this examiner may have relied on the IOM study, or the other studies referred to, is unclear. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran's bilateral hearing loss. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record, the examiner should answer the following: Is it at least as likely as not (50 percent probability) that the Veteran's hearing loss disability was incurred in or is otherwise related to service, to include conceded in-service noise exposure to military equipment? The examiner is specifically notified that the Veteran DID NOT have a hearing loss disability for VA compensation purposes at enlistment and is presumed sound. The requested opinion must address whether the hearing loss is directly related to the Veteran's service. The examiner may NOT base a negative opinion on a lack of documented complaints or treatment for hearing loss within one year of separation from service. Should the examiner rely to any extent upon the2005 IOM report ("Noise and Military Service: Implications for Hearing Loss and Tinnitus") to refute the theory of delayed onset hearing loss, the examiner must (i) identify the medical text's qualifying or contradictory aspects ("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 (ii) 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 hearing loss is as likely as not etiologically related to in-service noise exposure. The examiner may discuss this Veteran's documented complaints and clinical history in support thereof but must not reject medical history unless otherwise incongruous with the record and explaining why any history is rejected. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why this is so. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.