Citation Nr: 18152589 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 12-27 439A DATE: November 23, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for depression is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss was not incurred in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in March 2013, and thereafter, in April 2013, the appellant filed a claim for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534). From October 10, 2008, an eligible person may process the Veteran’s claim to completion if a request for substitution is filed no later than one year after the date of the Veteran’s death. 38 U.S.C. § 5121A. Here, the appellant filed a VA Form 21-534 within the applicable time frame and, the Agency of Original Jurisdiction recognized her as a valid substitute for the Veteran. VA’s duty to notify was satisfied by a letter sent in February 2012. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The evidence of record includes the Veteran’s VA treatment records, and the Appellant has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a VA examination for his bilateral hearing loss in February 2012. The Board found the examination was inadequate, and in October 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA records and receive another VA opinion for his bilateral hearing loss. In December 2017, the VA examiner reviewed the Veteran’s file and provided an opinion based on the review; the Board finds December 2017 VA opinion adequate. Id. Additionally, the Veteran’s additional medical records were added to the record. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2018). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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 (2018). The Veteran stated he was injured in a grenade explosion while in service. Due to the explosion, he suffered acoustic trauma which the Veteran stated this explosion caused his bilateral hearing loss. The Board notes the Veteran’s audiological examination shows that the Veteran’s bilateral hearing loss meets the VA criteria to be considered a disability for VA purposes. See 38 C.F.R. § 3.385 (2018). Accordingly, the service connection element at issue is nexus. The Veteran received a VA examination in February 2012. The examiner noted the Veteran’s records showed no combat exposure, but considered the Veteran’s reported injury that he sustained due a grenade explosion. The examiner noted the Veteran had no complaints of hearing loss in service or years following service. The first report of hearing loss in the Veteran’s medical records is in August 1996, more than 50 years after service. Thus, the examiner determined the Veteran’s hearing loss was not likely related to his time in service. A VA examiner reviewed the Veteran’s files and provided an opinion in December 2017. The examiner similarly noted the Veteran did not have any hearing loss complaints in service. The examiner stated that damage to the auditory system after a single extremely intense acoustic event is immediate after the trauma. The examiner also noted that the medical literature did not support delayed onset or retroactive effect is expected to be evidenced as hearing loss so many years after being exposed to military noise. The Institute of Medicine (IOM) report on noise exposure in the military stated that it is unlikely that the onset of hearing loss begins years after noise exposure occurs. Furthermore, the IOM report stated that without audiograms at the beginning and end of military service it is difficult to determine with certainty how much of a Veteran’s hearing loss was acquired during service. There was no evidence to support the Veteran’s claim for hearing loss due to acoustic trauma or exposure to hazardous noise because he had no complaints of hearing loss for over 50 years after service. Instead, his hearing loss was associated with his post-service work and recreational noise exposure, progressive inner ear disease, aging, and presence of dizziness in 1996. To receive presumptive service connection for left ear hearing loss, the Veteran’s disability either must be present in service or must appear to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2018). Here, there is no evidence of continued symptomatology of hearing loss. The Board notes there is no evidence of hearing loss for decades after service. The Veteran and the Appellant have not provided a lay assertion of his hearing loss beginning in service or continuing from service. Therefore, the Board determines presumptive service connection is not warranted. Furthermore, the Board finds direct service connection is not warranted. The Board acknowledges the Veteran was exposed to excessive noise in service due to the grenade explosion. However, there were no complaints for hearing loss in the Veteran’s service records. Additionally, the VA examiner provided competent evidence against the Veteran’s claim for delayed onset hearing loss. In forming a conclusion, the examiner considered not only the Veteran’s claims file but also cited medical journals and provided alternative causes for the hearing loss. The examiner did not impermissibility rely solely on normal hearing at separation from service for the basis of the negative opinion. The Board assigns the VA examiner’s opinions higher probative value than the lay statements. Therefore, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. See Alemany v. Brown, 9 Vet. App. 518 (1996). REASONS FOR REMAND The Board notes the Veteran did not receive VA opinions for his back disability and his depression. A VA opinion is necessary to determine if these conditions were related to his time in service, specifically, the Veteran’s reported grenade explosion injury because the record is not sufficient for the Board to make a well-informed decision otherwise. Therefore, a VA opinion is necessary. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion as to the Veteran’s back disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s report of a back injury in service after a grenade explosion. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began during active service, is related to an incident of service, or; if arthritis was present, whether it began within one year of separation from service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to an appropriate clinician to provide an opinion regarding the Veteran’s depression. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s statement that his depression started after he was injured in a grenade explosion in service. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s depression began during active service, or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel