Citation Nr: 22018157 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-08 921 DATE: March 28, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1986 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Board reopened the Veteran's claim to entitlement to service connection for bilateral hearing loss and remanded the issue. Specifically, the Board remanded the issue to the RO to provide the Veteran a new VA examination and obtain an addendum medical opinion. However, as discussed below, the Board finds that remand is necessary for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2021, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks service connection for bilateral hearing loss as due to in-service noise exposure. See December 2016 VA Form 21-526; December 2016 statement in support of claim. The Veteran also contends that his hearing loss is related to his service-connected tympanic membrane rupture and/or tinnitus. See December 2016 and August 2019 statements in support of claim; July 2017 Hearing Transcript. The Veteran has been afforded VA examinations in November 1994, March 2017, and November 2021. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran was initially afforded a VA examination in November 1994 at which time the Veteran did not demonstrate hearing loss for VA purposes. See November 1994 VA examination. At that time, the VA examiner noted the Veteran's hearing was normal bilaterally. Id. As such, the VA examiner did not provide an opinion regarding the nature and etiology of the Veteran's current bilateral hearing loss. The Veteran was afforded a second VA examination in March 2017 at which time the Veteran demonstrated hearing loss for VA purposes. However, the Board previously determined the March 2017 VA examiner's medical opinion inadequate for decision making purposes. As noted, the Board remanded the issue for a new VA examination and medical opinion addressing the nature and etiology of the Veteran's bilateral hearing loss. The Veteran was most recently afforded a VA examination in November 2021. In regard to direct service connection, the VA examiner opined the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include exposure to hazardous noise exposure. See November 2021 VA examination. The VA examiner noted the Veteran's military occupational specialty (MOS) has a high probability for hazardous noise exposure. However, as rationale, the VA examiner noted there was no permanent positive threshold shift between the Veteran's entrance and separation audiograms; no hearing loss was demonstrated at separation from service; no evidence showing that a hearing loss was caused by or incurred in active duty or demonstrated within one year of separation from service; that the Veteran reported working in construction and as a sprinkler fitter; and it is quite likely that an individual might have experienced other hazardous noise exposures subsequent to discharge from military service that could result in significant noise induced hearing loss. Id. However, the Board finds the November 2021 VA examiner's medical opinion inadequate for decision making purposes as it relates to direct service connection. In that regard, the VA examiner appears to primarily rely on the absence of a demonstration or documented bilateral hearing loss in service in providing the negative nexus opinion. The mere absence of treatment or diagnosis of a condition in-service cannot be the sole basis for a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The absence of documented hearing loss in service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). There is no evidence to indicate the Veteran was exposed to hazardous noise following separation from service. For example, the Veteran specifically testified that he did not experience loud noises in his occupation as a sprinkler fitter following service. See July 2021 Hearing Transcript. Additionally, the VA examiner did not address the Veteran's lay statements or buddy statements the Veteran provided indicating some degree of hearing loss following separation from service. See December 2016 lay statements. As such, the Board finds the November 2021 VA examiner's medical opinion inadequate for decision making purposes and remand is necessary to obtain an addendum medical opinion addressing direct service connection. See Nieves-Rodriguez, 22 Vet. App. at 302; Stegall, 11 Vet. App. at 271. In regard to secondary service connection, the November 2021 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not proximately due or the result of service-connected left ear tympanic membrane rupture and tinnitus. See November 2021 VA medical opinion. As rationale, the VA examiner noted that a left tympanic membrane rupture would cause low frequency hearing loss; June 1991 and June 1992 in-service audiograms did not show low frequency hearing loss in either ear; hearing was normal at all frequencies in service; and physical damage to the left ear cannot affect the hearing in the right ear. Id. In regard to aggravation, the VA examiner merely provided the same rationale as was provided for causation in determining the Veteran's bilateral hearing loss was less likely than not aggravated by service-connected left tympanic membrane rupture. Id. In a January 2022 VA medical opinion, the VA examiner further provided that though tinnitus and hearing loss are often comorbid conditions, one does not cause the other. See January 2022 VA medical opinion. The VA examiner explained that hearing loss is usually caused by damage to the hair cells of the inner ear; when these hair cells are damaged, some of the sound waves hitting the ear are not detected, and no signal is sent from the ear to the brain to tell the brain about this sound. Id. Tinnitus is caused by those same cells that have been damaged; even though the cells are not sensing the sound waves, they do still fire sometimes, sending random electrical signals up to the brain when none of the other cells are receiving sound input for the environment. Id. The VA examiner explained that as the hearing loss worsens, or as more cells are damaged, the tinnitus will get worse as well, and this is why one may have believed that tinnitus causes hearing loss. Id. Therefore, the VA examiner determined that the Veteran's right ear hearing loss was less likely than not proximately due to and/or the result of the Veteran's bilateral tinnitus. Id. The Board finds the November 2021 and January 2022 VA examiner's medical opinions inadequate. First, the VA examiner again impermissibly primarily relies on the absence of demonstrated or documented hearing loss while in service. The VA examiner does not provide an opinion as to whether the Veteran's left tympanic membrane rupture could cause the Veteran's current bilateral hearing loss following separation from service. The VA examiner also merely states the same inadequate rationale with regard to aggravation, and it is unclear whether the Veteran's left tympanic membrane rupture could have aggravated the Veteran's bilateral hearing loss. Second, the VA examiner does not provide an opinion as to whether the Veteran's service-connected tinnitus is as at least as likely as not to have aggravated the Veteran's current bilateral hearing loss. As such, the Board finds the November 2021 and January 2022 VA medical opinions inadequate for decision making purposes and remand is necessary to obtain addendum medical opinions addressing secondary service connection for the Veteran's bilateral hearing loss, to include a clear aggravation opinion. See 38 C.F.R. § 20.802; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018); Nieves-Rodriguez, 22 Vet. App. at 302; Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this Remand to the examiner who provided the November 2021 VA examination and medical opinions, or, if that examiner is unavailable to another suitably qualified physician, for completion of addendum medical opinions to determine the nature and etiology of the Veteran's bilateral hearing loss. If the examiner determines that a new examination is necessary to provide the requested opinions, such examination should be scheduled. The examiner must address the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is otherwise causally or etiologically related to his active duty service. A complete and adequate rational should be given for all opinions and conclusions expressed. The examiner must address the Veteran's lay statements and buddy statements indicating hearing difficulties following service and not being exposed to hazardous noise following service. See December 2016 statements in support of claim; July 2021 Hearing Transcript. The VA examiner must also consider and address the Veteran's in-service left ear tympanic membrane rupture in December 1989 and left ear pain diagnosed as left ear otitis externa in July 1989. The examiner must also consider the March 2017 VA hearing loss examination report which reflects that the Veteran has a bilateral hearing loss disability for VA purposes. The audiologist opined that the right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The audiologist could not determine a medical opinion regarding the etiology of the Veteran's left ear hearing loss without resorting to speculation. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss is proximately due to, or the result of, his service-connected left ear tympanic membrane rupture and/or tinnitus. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss is aggravated (worsened) by his service-connected left ear tympanic membrane rupture and/or tinnitus. (Continued on the next page) A complete and adequate rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, they should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.