Citation Nr: 22017174 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-25 719 DATE: March 24, 2022 ORDER Entitlement to service connection for bilateral hearing loss, for substitution purposes, is granted. Entitlement to service connection for tinnitus, for substitution purposes, is granted. REMANDED Entitlement to service connection for a low back disability, for substitution purposes, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran's favor, tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss, for substitution purposes, are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus, for substitution purposes, are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1954 to October 1957. The Veteran died in May 2021. The appellant is his surviving spouse. In August 2021, the Agency of Original Jurisdiction (AOJ) entered a determination in which the appellant was found to be a proper substitute claimant. In November 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. The Board notes that in August 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election appealing the issues to the Board. At the same time, he also submitted his substantive appeal, VA Form 9, under the legacy system requesting a Board hearing. However, on his RAMP form, the Veteran chose both the evidence submission lane and the hearing lane. Thus, given the selection of two lanes, it appears that this form is invalid. Regardless, the appeal was certified to the Board under the legacy system. As noted above, the appellant was afforded the requested Board hearing under this system. Further, given the awards of service connection herein as well as the remand of the remaining issue on appeal, there is no prejudice to the appellant in proceeding with this decision. As such, this claim is still under the legacy system. Service Connection for Bilateral Hearing Loss and Tinnitus The appellant asserts that the Veteran's bilateral hearing loss and tinnitus were related to in-service noise exposure due to his duties as a radar technician. The appellant has asserted that the Veteran was already having hearing problems when she met him 18 years ago, and he had reported to her that he had experienced hearing problems since service. She also reported that the Veteran complained of ringing in his ears that began in service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board concludes that the Veteran had been diagnosed with bilateral hearing loss and tinnitus that were related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). In this regard, a private September 2018 audiogram shows that the Veteran met the VA criteria for bilateral hearing loss under 38 C.F.R. § 3.385. The examiner also diagnosed tinnitus. Tinnitus is also a disability subject to lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Unfortunately, the Veteran's service treatment and personnel records are not available as they were destroyed in a fire. Under the circumstances, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). Given the appellant's statements, the Veteran's assertions concerning inservice noise exposure before he died and his military occupational specialty of radar equipment repairman, the Board finds that the Veteran's inservice noise exposure is conceded. The Veteran was afforded a VA examination in October 2017; however, the examiner indicated that they could not test the Veteran due to his dementia and offered no etiology opinion with respect to his hearing loss. However, the examiner found that the Veteran's tinnitus was less likely than not caused by in-service noise exposure. The examiner rationalized that there was no evidence in the claims file to support that his tinnitus was related to service. Further, the Veteran was unable to describe tinnitus and did not report tinnitus. However, the Veteran did report tinnitus at the time of filing his claim. Moreover, as noted above, he subsequently reported tinnitus at a private September 2018 hearing test. As such, the Board finds that the October 2017 VA opinion has no probative value as the remaining evidence of record does show a diagnosis of tinnitus. Importantly, in support of his claim, the Veteran submitted the September 2018 private opinion by a licensed audiologist. The examiner diagnosed sensorineural hearing loss in both ears. The examiner opined that given the Veteran's report as well as his wife's written account of his in-service noise exposure, and the examination results, it is at least as likely as not that the noise exposure the Veteran experienced during service may have contributed to his tinnitus and hearing loss. The Board recognizes that this opinion is couched in speculative terms. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993). However, the same examiner submitted another opinion in November 2021. She indicated that she had reviewed the Veteran's DD 214 and opined that it was at least as likely as not that the Veteran's hearing loss was a direct result of hazardous noise exposure during service. The examiner rationalized that based on personal experience and the medical literature, it is known that noise exposure can cause hearing loss and tinnitus. Accordingly, given the Veteran's inservice noise exposure as well as the November 2021 private opinion; and when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted for bilateral hearing loss and tinnitus, for substitution purposes. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this determination, the Board finds that the evidence is at least in a state of equipoise. In such situations, a decision favorable to the Veteran is mandated by 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for a low back disability, for substitution purposes, is remanded. The present appeal also includes a claim for service connection for a low back disability. Prior to his death, the Veteran reported that his current low back disability was due to carrying heavy transformers. The appellant also reported that the Veteran consistently complained of back pain. She further stated that he also consistently asserted that the condition began in service while lifting radios. VA clinical records show reports of back pain. Again, in this case, given the lack of service records, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a VA opinion if review of the evidence of record determines that such opinion examination is necessary to decide the claim. 38 C.F.R. § 3.159 (c) (4). Consequently, in light of the above, the Board finds that a VA opinion to determine the etiology of the Veteran's low back disability is necessary to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159 (c) (4) presents a low threshold for the requirement of a VA examination). Moreover, the appellant testified that the Veteran had an x-ray of his back at some point. There does not appear to be any x-ray in the record. As such, the Board finds that the AOJ should attempt to obtian any relevant private treatment records pertaining to the Veteran's low back disability. The AOJ should also ensure that all of the Veteran's VA clinical records have been associated with the record. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for any private treatment records pertaining to the Veteran's low back disability. Make two requests for the authorized records from any identified physicians or facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain any outstanding VA clinical records, especially any x-rays of the low back. 3. Send the record to an appropriate clinician to obtain an etiological opinion concerning the Veteran's low back disability. After reviewing the claims file, the examiner must opine whether any low back disability at least as likely as not that (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to active duty, including lifting heavy equipment. The examiner must provide a detailed rationale for any opinion expressed. The examiner must address the service treatment records, post service treatment records and the Veteran's lay statements of pertinent symptomatology. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.