Citation Nr: 21030648 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-08 282 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss, for substitution benefits purposes, is denied. FINDING OF FACT The evidence of record does not reflect that the Veteran's bilateral hearing loss began during service or was otherwise related to service, to include the conceded in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1965. The Veteran's case came to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. Unfortunately, the Veteran passed away during the pendency of this appeal in June 2020, and the appellant is his surviving spouse. Under 38 U.S.C. § 5121A, a person who could be considered an accrued benefits claimant may substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The statute applies to claims of any claimant who died on or after October 10, 2008. See Pub. L. No. 110-389, 212, 122 Stat. 4145, 4151 (2008). Here, as the Veteran died in June 2020, the substitution benefits provisions apply. In a July 2020 notification letter, the Agency of Original Jurisdiction (AOJ) recognized the appellant as a substitute claimant for the Veteran's claims on appeal that were pending when he died. By way of history, the Veteran had appealed an August 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or "Court") and in September 2020, the parties filed a Joint Motion for Partial Remand (JMPR) in which they agreed that the Board erred by relying on an inadequate VA examination from February 2019 in denying the claim, and vacated a portion of the August 2019 Board decision that denied service connection for bilateral hearing loss. Accordingly, the Board remanded the case in December 2020 for obtaining a medical addendum opinion. The Board finds substantial compliance with the remand directives, as an adequate medical addendum opinion has been obtained since then. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence favorable to the appellant. The appellant must not assume the Board has overlooked evidence not explicitly discussed herein. Neither the appellant nor the appellant's representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, nor have any other issues been reasonably raised by the record. The appellant has not alleged any deficiency with the Board hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a presumptive basis for certain "chronic diseases" listed in 38 C.F.R. § 3.309 (a), such as sensorineural hearing loss, where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. 38 C.F.R. §§ 3.303 (b), 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The appellant is seeking service connection for bilateral hearing loss disability, for substitution benefits purposes. As noted in the previous Board remand, the Board has already conceded the Veteran's noise exposure in service, and it is not in question that the Veteran had been diagnosed with bilateral hearing loss prior to his death. Nonetheless, the Board finds that the evidence does not demonstrate that the Veteran's bilateral hearing loss was related to the conceded in-service noise exposure. In making this determination, the Board has relied heavily on the January 2021 VA medical addendum opinion. The January 2021 VA examiner opined that the Veteran's hearing loss was less likely than not related to his military service, to include his in-service noise exposure. First, the examiner indicated that no significant hearing loss or hearing threshold shifts were noted to have occurred at any frequency in either ear during active duty, highlighting his enlistment and separation audiogram documents documenting hearing within normal limits all tested frequencies. As for his complaint of ear pain in service, the examiner noted such as irrelevant to his hearing loss, and also not a reflection of the Veteran's hearing threshold status, as there are multiple factors that could cause ear pain. The examiner further pointed to the nature of the Veteran's hearing loss (sensorineural) and his statement (that ear pain seems to be due to swimming in the pool) as seemingly suggestive of his hearing loss not being due to his military service. Considering his diagnosis of Meniere's disease in 2007 and a sudden significant shift first allegedly noted in 2005, almost 40 years after service, the examiner stated that these only further lead to a conclusion that the Veteran's hearing loss is not related to his service. Regarding any potential nexus between in-service noise exposure and his hearing loss, the examiner cited to a medical study in denying a positive relationship to service based on medical principles as to the onset and development of hearing loss. The Board assigns most probative value to this opinion, as this was furnished after reviewing all pertinent records, to include previous VA and private medical nexus opinions, service treatment records, and post-service treatment records. As briefly discussed in the December 2020 Board remand, while the Veteran underwent another VA examination in 2019during which time the examiner, in part, cited to the Institute of Medicine regarding a delayed onset in providing an etiology opinionthe examiner at the time failed to address various evidence, to include the Veteran's in-service complaint of ear pain, his lay statements that he had discomfort in his ears during service, the August 2017 private opinion that the Veteran's hearing loss was due to his time spent around guns, and the August 2017 private treatment records indicating that the Veteran's hearing loss occurred over the years. Thus, the Board assigns only minimal probative value to this 2019 VA opinion. The Board acknowledges a positive private medical nexus opinion provided in support of the claim (see August 2017 private medical nexus opinion). However, the Board assigns no probative value to this opinion for the following reasons. The private physician failed to provide any rationale in support of the positive etiology opinion; rather, it was conclusive with no explanation as to why that opinion was reached. Furthermore, it is also unclear whether the private physician reviewed all pertinent records, to include the Veteran's service and post-service treatment records, in furnishing this opinion. These records are critical to understanding his accurate medical history as they show not only in-service audio test results, but also his post-service diagnosis of Meniere's disease in 2007 and the Veteran's account at that time of a sudden significant shift in his hearing in 2005. While the private physician's statement the Veteran was around guns during service is certainly accurate, it cannot be said that he had a complete and accurate picture of the Veteran's particular medical history, beyond just in-service noise exposure, when he did not have access to nor discuss any of the pertinent facts from the service and post-service treatment records. The 2021 VA examiner's discussion of the Veteran's medical history and all relevant facts, in contrast, makes that opinion much more persuasive. In addition, even though the Veteran's bilateral hearing loss is a "chronic disease" under 38 C.F.R. § 3.309, the Board finds that he is not entitled to presumptive service connection for this condition. See 38 C.F.R. § 3.303(b). The Veteran's service treatment records do not show complaints or findings of bilateral hearing loss, so there were no manifestations during service. The Veteran did not make any specific contentions that he experienced continuous bilateral hearing loss symptoms post-separation, and in fact, reported sudden onset in 2005. The comment in the 2017 opinion that the Veteran's hearing loss had occurred "over the years" is not only vague, but is also outweighed by the records showing the Veteran clearly reported sudden onset of hearing loss occurred almost 40 years after separating from service. There is no persuasive evidence of continuity. Thus, service connection cannot be established under the presumptive basis for substitution benefits purposes. The Board also considered the Veteran's lay assertions made prior to his death that his bilateral hearing loss resulted from his in-service noise exposure. While a lay person is certainly competent to report matters within his own personal knowledge, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions. In this case, the Veteran had not demonstrated, prior to his death, any medical training/expertise appropriate for furnishing a medical nexus opinion. Thus, the Board gives no probative value to the lay assertion to that extent and gives more probative value to the medical addendum opinion provided in January 2021. Accordingly, the claim for service connection for bilateral hearing loss for substitution benefits purposes is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.