Citation Nr: 20035198 Decision Date: 05/20/20 Archive Date: 05/20/20 DOCKET NO. 17-04 710 DATE: May 20, 2020 ORDER Entitlement to service connection for bilateral hearing loss for substitution purposes is denied. Entitlement to service connection for a low back condition for substitution purposes is denied. REMANDED Entitlement to service connection for hepatitis C for substitution purposes is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s low back condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 2. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1978. The Veteran died in May 2018, and the appellant has been substituted for his service connection claims on appeal. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the matters for further development. Now the matters are returned to the Board. Service Connection A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Bilateral hearing loss The Veteran underwent a VA examination in April 2015 and was diagnosed with bilateral sensorineural hearing loss for VA purposes. Also, the April 2015 VA examiner stated that the Veteran’s in-service significant noise exposure is conceded as the evidence of record shows the Veteran’s military occupational specialty as aviation structural mechanic. Thus, the Board finds that the first and second Shedden elements for service connection are met. However, the April 2015 VA examiner opined that the Veteran’s bilateral hearing loss is less likely as not related to or the result of his military noise exposure. The examiner provided that this opinion is based on the absence of evidence that the Veteran’s hearing was adversely affected by his military service. The examiner also noted that the Veteran’s separation examination of May 22, 1978 showed his bilateral hearing by puretones was within normal limits. The Board notes that the RO obtained another medical opinion in January 2020. The January 2020 examiner noted that the Veteran’s audiograms from 1974 to 1977 showed no significant shifts in thresholds and those are the most objective tests to see if the Veteran was suffering from any acoustic trauma causing a noise-induced hearing loss. The examiner opined that the Veteran’s hearing loss established in 2015, after 40 years from separation, was less likely than not related to his military service since the objective tests showed no changes in the Veteran’s puretone thresholds throughout his military career. The Board also notes that the evidence of record does not show that the Veteran’s bilateral hearing loss had its onset in service, or he had continuity of symptomatology or treatments related to bilateral hearing loss since separation. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the appellant’s entitlement to service connection for bilateral hearing loss for substitution purposes is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 2. Low back condition The evidence of record shows the Veteran’s complaints of low back pain and assessment of chronic pain syndrome. See e.g., February 2017 Consult Note. Thus, the Board resolves reasonable doubt in the Veteran’s favor and finds that the first Shedden element for service connection for a low back condition is met. However, although the Veteran contended that he was treated for low back pain in service, his service treatment record does not show any complaints, diagnosis, or treatment history related to his back. Also, notably, the Veteran denied any recurrent back pain during his separation examination. See May 22, 1978 Report of Medical History. The Board notes that a VA medical opinion regarding the nexus between the Veteran’s low back condition has not been obtained. However, the Board finds that obtaining the VA medical opinion is not necessary to make a decision on this claim since no competent evidence of any in-service injury or incurrence of a low back condition, other than the Veteran’s assertion of in-service back pain treatment, is on record to trigger the need for an additional medical opinion. See 38 U.S.C. § 5103A (2012). In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s low back condition began during active service, or is otherwise related to an in-service injury or disease. Consequently, the Board finds that the appellant’s entitlement to for substitution purposes is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS FOR REMAND The Veteran was also seeking service connection for hepatitis C. The Veteran contended that his hepatitis C is likely from his in-service air-gun injections for vaccinations, sexual contact, and/or exposure to blood while working as a mechanic from other sailors regularly cutting their hands. However, the Board finds more development is necessary prior to final adjudication. The RO obtained a medical opinion regarding the Veteran’s hepatitis C in January 2020. The January 2020 VA examiner opined that the Veteran’s hepatitis C is less likely than not due to his claimed in-service injury, event, or illness. The examiner noted that the Veteran’s hepatitis C was diagnosed in 2011 and his route of exposure was most likely from cocaine use. The Board notes that the evidence of record documents the Veteran’s cocaine use in September 2015. However, the evidence shows that the Veteran’s chronic hepatitis C diagnosis was noted prior to 2011 and the Veteran was aware of his diagnosis since 2007. See November 2009 Outpatient Visit Note (the Veteran was aware of his hepatitis C diagnosis for two years since trying to give plasma). Thus, the Board finds that obtaining an addendum opinion from the January 2020 examiner is necessary in order to make a fully informed decision. Accordingly, the matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction must obtain an addendum opinion from the January 2020 VA examiner regarding the Veteran’s service connection claim for hepatitis C. If the January 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s hepatitis C was at least as likely as not (50 percent or greater probability) related to his service. (b.) The examiner specifically is asked to address the November 2009 Outpatient Visit Note where the Veteran’s chronic hepatitis C diagnosis and his knowledge of his diagnosis for two years since trying to give plasma were noted. (c.) The examiner must provide a complete written rationale for any opinion offered. 2. After completing the above actions and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the appellant and her representative. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.