Citation Nr: 22019565 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-51 967 DATE: April 1, 2022 REMANDED Entitlement to service connection for bilateral hearing loss. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from July 13, 1979, to December 29, 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. The record was held open for 60 days following the hearing so that the Veteran could submit additional evidence. A transcript of the hearing is associated with the claims file. In December 2021, the Board reopened and remanded this claim for additional evidentiary development. The appeal has been returned to the Board for further appellate action. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for bilateral hearing loss. A report of medical examination performed on September 27, 1977, reveals normal findings for the ears and hearing. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 5 5 LEFT 20 25 10 10 15 The Veteran was treated for otitis media in July and August 1980. A report of medical examination performed on July 7, 1982, reveals normal findings for the ears and hearing. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 5 10 LEFT 15 15 20 25 25 A report of medical examination performed on May 14, 1989, reveals normal findings for the ears and hearing Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 0 10 LEFT 25 15 20 20 30 A report of medical history completed by the Veteran on May 14, 1985, reveals the Veteran's denial of any history of, or current, hearing loss or ear trouble. A report of medical examination performed on July 28, 1986, reveals normal findings for the ears and hearing Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 5 25 LEFT 15 20 15 25 25 The Veteran was treated for otitis in November 1986. A report of medical history completed by the Veteran on May 2, 1988, reveals the Veteran's denial of any history of, or current, hearing loss or ear trouble. A report of medical examination performed on October 29, 1989 (service separation) reveals normal findings on examination, and normal findings for the ears and hearing. HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 15 5 LEFT 25 20 20 25 45 The Veteran was discharged from active duty service in December 1989. He filed his original claim seeking service connection for hearing loss in May 1992. A VA examination in July 1992 reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 25 LEFT 10 15 15 25 30 A VA audio examination in December 2021 reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 55 LEFT 20 26 40 25 65 Speech recognition scores were 94 percent (right ear) and 90 percent (left ear). The examiner opined that it is less likely than not (less than 50% probability) that hearing loss is related to active military service, to include noise exposure. The examiner stated that there was normal hearing upon entrance and separation from military service to calibrated audiometric testing. Additionally, there was no significant in-service threshold shift noted at any frequency (500-4000Hz). However, the Board notes that the measurement of 45 dB in the left ear at service separation meets the definition of hearing loss for VA purposes. Thus, audiometric testing reveals that the Veteran had left ear hearing loss at service separation. However, post-service audiometric testing performed by VA in 1992 did not reveal hearing loss for VA purposes. The examiner did not explain address this discrepancy in the contest of why the audiometric testing on separation examination in October 1989 does not constitute a significant threshold shift. The examiner also cited a medical study showing that, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that delayed effects, such as permanent noise-induced hearing loss, occur. The Board notes that the report cited by the examiner in support of the medical opinion has been addressed by the United States Court of Appeals for Veterans Claims (Veterans Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). There, the court noted the caveats in the 2005 Institute of Medicine (IOM) report entitled: Noise and Military Service: Implications for Hearing Loss and Tinnitus, that "[t]here 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 that "definitive studies to address this issue have not been performed." The Veterans Court questioned whether these caveats might undermine the basis for, and conclusions of, the cited study. The Veterans Court ultimately cited the Board's failure to address these contradictory findings of the report and how they might impact the adequacy of the medical opinion based on them. Here, the December 2021 VA examiner's opinion appears to be based largely on the report cited in McCray; however, there is no meaningful discussion of the sufficiency of the evidence in the report to support the examiner's opinion. In light of the holding in McCray, this opinion would likely be found to be inadequate by the Veterans Court. Accordingly, the matter is REMANDED for the following action: 1. Obtain a supplemental opinion from the examiner who conducted the December 2021 examination. If the examiner is not available, obtain an opinion from another medical professional. If the individual designated to provide the opinion determines that additional examination of the Veteran is necessary to provide a reliable and conclusive opinion, such examination should be scheduled. The claims folder must be made available. An opinion is requested as to whether the Veteran's current bilateral hearing loss is at least as likely as not related to service, to include noise exposure therein. If the evidence does not establish a 50 percent or better probability of such relationship, then the examiner should state this. The examiner is specifically advised that the Veteran's threshold of 45 dB in the left ear at 4000 Hertz meets the definition of left ear hearing loss under VA regulations. If the examiner relies on the 2005 IOM report, the examiner is asked to address the significance of the contradictory findings in that report, as cited above. The examiner is further advised that absolute certainty is not required. If the examiner determines that a conclusive opinion cannot be rendered, the examiner should precisely state the reasons for this determination, addressing what facts cannot be determined, whether all procurable and assembled data have been considered, and whether additional research, examination, or testing might facilitate a conclusive opinion. 2. Readjudicate the remanded claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.