Citation Nr: 1002577 Decision Date: 01/15/10 Archive Date: 01/22/10 DOCKET NO. 08-13 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for the claimed disabilities. The Veteran testified at a hearing before the RO in September 2008. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for tinnitus and entitlement to service connection for COPD, to include as secondary to asbestos exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT There is no competent medical evidence of a current hearing loss disability for VA purposes. . CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2009). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2009); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to initial adjudication of the Veteran's claim, a letter dated August 2006 was sent to the Veteran in accordance with the VCAA. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran was also notified of the criteria for establishing an effective date and disability rating. See Dingess, supra. In that regard, the Veteran received complete notice with respect to his claim for service connection. The Veteran's service treatment records, VA treatment records, VA examination report, and a hearing transcript have been associated with the claims file. The Board specifically notes that the Veteran was afforded a VA examination with respect to his hearing loss and tinnitus in January 2007. 38 C.F.R. § 3.159(c)(4) (2009). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is based on a review of the claims file, contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and, to the extent possible, provides an opinion as to the etiology of the Veteran's hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2009). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 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. 38 C.F.R. § 3.303(d) (2009). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory 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 (2009). Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. Service treatment records also include audiological evaluations. The Board notes that prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Veteran underwent an enlistment examination in October 1962. He denied any history of ear trouble and indicated he "was in good health." Whispered voice testing was 15/15 bilaterally. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) The Veteran underwent a separation examination in July 1966. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) -10 (0) 0 (10) -5 (0) LEFT 0 (15) 0 (10) -10 (0) -10 (0) -5 (0) The Veteran also underwent a Naval Reserves re-enlistment examination in December 1975. On examination, he was diagnosed with acute left aerotitis media, which was not considered to be disqualifying. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 0 LEFT 20 15 10 10 5 The Veteran was afforded a VA examination in January 2007. The Veteran reported exposure to artillery, aircraft, heavy equipment, weapons, and diesel engine noise during service. As a civilian, he worked as an aircraft mechanic for less than a year after discharge, then worked as a truck driver for the next 40 years. He denied any other civilian noise exposure. He denied any ototoxic medication, head trauma, familial hearing loss, middle ear disease, or complaints of vertigo or other aural symptoms. On examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 25 25 LEFT 25 25 15 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Otoscopy was normal bilaterally. A hermetic seal could not be maintained for tympanometry. The examiner noted that the Veteran did not have a hearing loss disability under 38 C.F.R. § 3.385. VA treatment records dated July 2008 show the Veteran complained of a six week history of dizzy spells. He reported some hearing loss. On examination, his ears were clear bilaterally. Weber testing was midline, and Rinne testing noted air conduction to be greater than bone conduction bilaterally. Dix-Hallpike testing was negative on the right and positive on the left. Additional VA treatment records dated August 2008 include an audiological evaluation. The Veteran reported hearing problems for the past 30 to 40 years, which he stated could have started while he worked on the flight deck in the armed forces. He also thought his hearing loss could have occurred gradually and progressively. The Veteran also reported tinnitus, occurring once every other month, lasting for about 5 to 30 seconds. Otoscopic examination did not show any cerumen impaction in either ear canal. Tympanic membranes were intact. Puretone thresholds were not recorded. However, the treating physician noted mild sensorineural hearing loss through 4000 Hz, with borderline normal hearing at 2000 Hz. There was moderate sensorineural hearing loss in the 6000 - 8000 Hz range. Speech reception thresholds were 30 dB HL on the right and 35 dB HL on the left. These thresholds were consistent with puretone thresholds bilaterally. Word recognition was 94 percent on the right and 98 percent on the left. The Veteran testified at a hearing before the RO in September 2008. With respect to his hearing loss, the Veteran reported that his hearing was normal at the time of his enlistment. He also described being exposed to the noise of the flight deck. His spouse stated that the Veteran had hearing difficulties approximately 28 years ago when she first married him, and that his hearing had worsened since that time. He also described being exposed to the noise of the flight deck. The Federal Circuit held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted')). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. App. 336 (2009). Here, the Veteran and his spouse are competent to report hearing difficulties they have observed. However, neither the Veteran nor his spouse has demonstrated the medical knowledge required to diagnose sensorineural hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Therefore, although the statements of the Veteran and his spouse offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis of bilateral hearing loss. After review of the evidence of record, the Board finds that the Veteran does not meet the criteria for a current hearing loss disability in either ear for VA purposes, based on puretone thresholds and speech recognition scores reported during the January 2007 VA examination. 38 C.F.R. § 3.385 (2009). Audiological testing in July 2008 did not include specific puretone thresholds, but the reported word recognition scores also failed to meet the criteria for hearing loss. Without competent evidence establishing a hearing loss disability under 38 C.F.R. § 3.385, service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. REMAND Tinnitus The Veteran was diagnosed with intermittent tinnitus during his January 2007 VA examination. During the September 2008 RO hearing, the Veteran stated that during service he did not have tinnitus, but that during his last flight, the plane made a "quick landing" on the deck, which caused a sudden change in cabin pressure and trauma to the ears. Since that time, he had experienced tinnitus. He stated that he may have been on reserve duty at that time, but was unable to provide specific information regarding the flight. The RO requested details of the Veteran's reserve duty, including unit information and dates of service, in a December 2008 letter. To date, however, that information has not been provided. However, as noted above, the Veteran underwent a Naval Reserves re-enlistment examination in December 1975, approximately 9 years after his period of verified active service. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty. See 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6 (a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 C.F.R. § 3.6(c)(1). It follows from this that service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Complete records of the Veteran's reserve duty have not been obtained. VA's duty to assist a claimant requires that the Board attempt to obtain these records. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1 Vet. App. 37 (1990). Further, the Board finds that once the additional evidence is added to the record, the claims file should be referred to the January 2007 VA audiologist who rendered an opinion in this case to determine whether a supplemental opinion is in order upon review of any records obtained by this remand request. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). COPD The Veteran has alleged that he has COPD as a result of in- service asbestos exposure. Specifically, he stated that he was exposed to asbestos while scraping lead paint and cleaning pipes aboard his ship. The Veteran's Form DD-214 indicates his MOS was Aviation Machinist's Mate. VA has issued a circular as to claims of service connection for asbestosis or other asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. In this case, the Veteran's post-service VA treatment reports note a diagnosis of COPD in July 2006. Although current diagnoses and treatment for a respiratory disorder has been shown, the Veteran's record is devoid of a diagnosis of asbestosis, or a medical opinion linking his current diagnosis to his period of active service. Therefore, additional development should be undertaken to verify whether the Veteran was exposed to asbestos during service. If asbestos exposure is verified, the Veteran should be afforded an examination to determine whether his current COPD is related to asbestos exposure in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should again contact the Veteran and ask him to provide details regarding his service in the Naval Reserve, including dates of service. The RO/AMC must then contact the National Personnel Records Center, the service department, or other applicable organization and obtain written verification of the dates of all periods of active duty, ACDUTRA, and inactive duty training, including those periods of service in the Naval Reserves, served by the appellant. The RO/AMC should request the appellant's complete service treatment records from all periods of service including ACDUTRA as well as inactive duty training. If no such records are available, ask for specific confirmation of that fact. 2. If the Veteran's additional military service is verified and/or additional service treatment records are obtained, the claims file should be forwarded to the audiologist (if available) who conducted the January 2007 VA examination for review of such records and submission of a supplemental opinion. If that examiner is not available, the case should be forwarded to another suitably qualified examiner. The specific dates of all of the appellant's periods of active duty, active duty for training, and inactive duty training should be made available to the examiner. The examiner is requested to provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current tinnitus was incurred in or aggravated during a period of active duty, active duty for training or inactive duty training. The clinical findings and reasons that form the basis of the opinion should be clearly set forth in the report. If the examiner is only able to theorize or speculate as to this matter, she should so state. 3. The RO/AMC should attempt to verify the Veteran's claimed in-service asbestos exposure by contacting the Naval Historical Center, Ships History Branch and the Naval Sea Systems Command or other relevant Department of Defense office, regarding asbestos aboard the ships to which the Veteran was assigned. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 4. If, and only if, the evidence obtained by the above searches confirms asbestos exposure during service, the Veteran should be scheduled for a VA respiratory examination to determine whether he has a current respiratory or pulmonary disorder, to include COPD, due to exposure to asbestos in service. The examiner should review the claims folder prior to examination. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current lung disorder is related to any period of active service to include exposure to asbestos in service. The examiner should discuss the Veteran's Navy service as well as his post-service employment history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. 5. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs