Citation Nr: 21077536 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-27 449 DATE: December 30, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. REMANDED Service connection for a bilateral eye disorder is remanded. FINDINGS OF FACT 1. Prior to death, the evidence showed the Veteran had bilateral sensorineural hearing loss to a severity recognized as a disability for VA purposes. 2. The Veteran was exposed to loud noise (acoustic trauma) while in service. 3. The Veteran experienced "continuous" symptoms of bilateral hearing loss since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for presumptive service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1974 to December 1979. The Veteran died in October 2021. The appellant is the surviving spouse of the Veteran. The appellant timely submitted a VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant, which was received by the Department of Veterans Affairs (VA) in December 2021. Effective October 6, 2014, VA issued a regulation allowing eligible individuals to substitute as the appellant on claims pending at the time of a Veteran's death. 79 Fed. Reg. 52,977 (Sept. 5, 2014) (eff. Oct. 6, 2014) (codified at 38 C.F.R. § 3.1010). Specifically, 38 C.F.R. § 3.1010 states that if a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000 may request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by VA, or an appeal of a decision with respect to such claim, that was pending before the Agency of Original Jurisdiction (AOJ) or the Board of Veterans' Appeals (Board) when the claimant died. Upon a grant of a request to substitute, the substitute may continue the claim or appeal to completion. 38 C.F.R. § 3.1010(a). To date, the AOJ has not ruled upon the appellant's timely substitution request; however, as a review of the record reflects that the appellant, as the surviving spouse of the Veteran, is eligible for substitution under 38 C.F.R. § 3.1010, the Board finds substitution of the appellant for purposes of adjudicating the instant matter to completion to be warranted. This matter came before the Board on appeal from a June 2015 VA Regional Office (RO) rating decision, which denied service connection for the issues on appeal. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for bilateral sensorineural hearing loss and remands the issue of service connection a bilateral eye disorder, no further discussion of VA's duties to notify and assist is necessary. 1. Service Connection for Bilateral Hearing Loss is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to death, the evidence shows that the Veteran had a bilateral hearing loss disability that met the VA regulatory criteria at 38 C.F.R. § 3.385. An April 2015 VA audiological examination report showed pure tone thresholds of 40 dB or greater at all relevant frequencies in both ears. At the conclusion of the examination the diagnosis was bilateral sensorineural hearing loss. The Veteran was exposed to loud noise (acoustic trauma) while in service. At the time of the June 2015 rating decision denying service connection for bilateral hearing loss, VA granted service connection for tinnitus, finding the tinnitus was due to in-service acoustic trauma. Specifically, the AOJ found that "inservice noise exposure is conceded based upon [the Veteran's] Navy rate of Quarter Master and duties while serving aboard the USS Enterprise." The Board finds that the weight of the medical and lay evidence of record is at least in equipoise on the question of whether the Veteran had continuous symptoms of bilateral hearing loss since service separation in December 1979. While service treatment records do not reflect a significant upward shift in audiometric readings between the service entrance examination in November 1974 and the service separation examination in December 1979, there is no corresponding Report of Medical History of record at the time of the Veteran's separation from service. As such, it is unknown whether at service separation the Veteran reported a history of having hearing difficulties. VA received the Veteran's claim for service connection for hearing loss in December 2014. It was the Veteran's first claim for VA compensation benefits. Also in December 2014, VA received a copy of a February 2008 private audiometric examination report showing hearing loss to an extent recognized as a disability for VA rating purposes. At a VA audiometric examination in April 2015, the Veteran conveyed first noticing hearing loss during service, and that he had undergone audiometric testing 25 years earlier, on or about 1990. The Veteran stated that following the testing a Dr. V informed that "surgery wouldn't help." Review of the record does not reflect that VA obtained, or sought to obtain, the private 1990 audiometric records from Dr. V; however, as the instant decision grants service connection for bilateral hearing loss, remand to attempt to obtain these outstanding private audiometric records is unnecessary. In a July 2015 Statement in Support of Claim, the Veteran reported a history of diminished hearing in the left ear at the time of service separation that subsequently worsened in both ears over the years following separation from service. The Veteran made similar lay statements in the September 2015 notice of disagreement (NOD) and May 2020 substantive appeal, via VA Form 9. Per the report from an April 2016 VA audiometric treatment record, in diagnosing the Veteran with bilateral sensorineural hearing loss, the VA examiner specifically noted the Veteran's in-service noise exposure. At a VA audiometric examination in February 2020, the Veteran denied having any significant post-service occupational noise exposure. While there was some post-service recreational noise exposure, the Veteran conveyed using hearing protection at those times. The Board notes that the VA examiners in April 2016 and February 2020 rendered negative direct service connection opinions; however, in rendering these opinions it does not appear that the VA examiners considered the Veteran's credible lay statements concerning hearing loss symptoms that the Veteran first noticed on or about the time of separation from service, and which continued to worsen from service separation to the present. As such, the Board finds the VA medical opinions to be of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Resolving reasonable doubt in the appellant's favor, the evidence of record is sufficient to show "continuous" bilateral hearing loss symptoms since service separation to meet the requirements of chronic disease presumptive service connection under 38 C.F.R. § 3.303(b). The Veteran's various consistent lay statements of hearing loss symptoms beginning at or near the time of service separation and continuing to the present that were made during his lifetime, along with the evidence of record indicating that the Veteran had been seeking private hearing loss treatment since at least 1990 and the April 2016 VA audiometric treatment record specifically noting the in-service loud noise exposure, are sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of bilateral hearing loss since service separation that was later diagnosed as bilateral sensorineural hearing loss. The above findings are supported by the fact that the Veteran has been granted service connection for tinnitus based on similar assertions of loud noise exposure during service. See June 2015 rating decision. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." See Fountain v. McDonald, 27 Vet. App. 258 (2015) (recognizing sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible). Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current bilateral sensorineural hearing loss. For these reasons, and resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service and experienced "continuous" symptoms of bilateral hearing loss since service separation in December 1979, which meets the criteria for presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.303(b) based on "continuous" post service symptoms. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. REASONS FOR REMAND 2. Service Connection for a Right Eye Disorder is Remanded. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During the course of this appeal, including in the March 2020 SOC, the AOJ began framing the eye disorder issue as service connection based on exposure to mustard gas; however, a review of the record reflects that the Veteran never advanced being exposed to mustard gas during service. Service treatment records reflect that in August 1979 the Veteran sought treatment for left eye irritation that was diagnosed as a corneal abrasion. In the December 2014 service connection claim, the Veteran merely sought service connection for a bilateral eye disorder, and made no mention of an in-service injury, disease, or event. Further, at the time of an April 2015 VA eye examination, there was no mention made of exposure to mustard gas during service. Following denial of service connection in June 2015, in a July 2015 statement, the Veteran attributed eye damage to being in a "gas chamber" during service longer than he was supposed to be inside. In a subsequent June 2019 Statement in Support of Claim, the Veteran clarified that there was once incident of gas exposure during service. During basic training the Veteran was placed in a gas chamber for two hours, despite procedures dictating that the training should have only lasted 20 minutes. At no time did the Veteran ever argue that the gas used in basic training was mustard gas. In fact, per a January 2020 Veterans Service History Review Checklist, the Department of Defense, while unable to confirm the Veteran's story of being a gas chamber for two hours, clarified that, if such training did occur, the gas used in the chamber would have been "riot control (tear) gas." Based upon the foregoing, the Board finds that the following two theories of service connection for a bilateral eye disorder have been raised. First, that one or more left eye disorders are due to the diagnosed left-eye corneal abrasion during service in August 1979. Second, that one or more eye disorders are related to the Veteran's in-service gas chamber training involving riot control/tear gas. As noted above, the Veteran received a VA eye examination in April 2015. At that time, the VA examiner only diagnosed a mild refractive error of both eyes; however, per various VA treatment records, during the course of this appeal the Veteran was also diagnosed with inferior conjunctivochalasis, optic nerve head cupping, and cataracts. To date, no opinion has been obtained concerning whether one or more of these previously diagnosed eye disorders were related to service. For these reasons, the Board finds remand for a new VA eye opinion to be necessary. The issue of service connection for a bilateral eye disorder is REMANDED for the following action: Obtain a medical opinion from an appropriate VA examiner. The relevant facts and medical history should be made available to the VA examiner. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that any previously diagnosed eye disorder, to include inferior conjunctivochalasis, optic nerve head cupping, and cataracts, had its onset during active service, to include as due to the in-service August 1979 left-eye corneal abrasion and/or exposure to riot control/tear gas during basic training? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.