Citation Nr: 1101917 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 09-06 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for asthma, to include as secondary to asbestos exposure. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for hearing loss, tinnitus, and asthma. In November 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in February 2009. His case is currently under the jurisdiction of the VA RO in Chicago, Illinois. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that bilateral hearing loss is the result of a disease or injury in active duty service, to include in-service noise exposure. 2. The preponderance of the evidence is against a finding that tinnitus is the result of a disease or injury in active duty service, to include in-service noise exposure. 3. The preponderance of the evidence is against a finding that asthma is the result of a disease or injury in active duty service, to include in-service asbestos exposure. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to be. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 3. Asthma was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claims, a letter dated in February 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio at 187. The February 2007 letter also informed the Veteran of how VA determines the appropriate disability rating and effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA examination reports, and all obtainable private treatment records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claims. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent a VA examination for his asthma in June 2007 and a VA examination for his hearing loss and tinnitus in July 2007. The results from those examinations have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the June and July 2007 examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims for service connection for bilateral hearing loss, tinnitus, and asthma. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds. II. Merits of the Claims Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2010). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A. Bilateral Hearing Loss and Tinnitus Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Initially, the Board notes that there is no indication that the Veteran was treated for or diagnosed with sensorineural hearing loss within a year of service so as to support a grant of service connection on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). As such, the Veteran is not afforded the presumption of service connection for bilateral sensorineural hearing loss. See 38 C.F.R. § 3.307 (2010). The Veteran's service treatment records are negative for complaints or findings of hearing loss and tinnitus. He had normal whispered voice testing, bilaterally, in July 1942 and December 1945. In July 2007, a VA examiner diagnosed the Veteran with sensorineural hearing loss and tinnitus bilaterally. Additionally, audiological testing showed that the auditory thresholds at 2000, 3000, and 4000 Hz were above 40 dB for both ears, and that the Veteran had a speech discrimination score of 90 percent in the left ear. These findings meet the VA regulatory definition of a hearing loss disability. See 38 C.F.R. § 3.385 (2010). As such, the first element of Hickson is met for the Veteran's claims for service connection for bilateral hearing loss and tinnitus. The Veteran's Form DD-214 indicates a military specialty of motor machinist mate. The Veteran asserts that, while on active duty, he was exposed to loud noises from the engine room and cannon fire. As such, some in-service noise exposure can arguably be conceded and the second element of Hickson is met. Although in-service noise exposure and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service noise exposure and his current audiological disabilities. See Hickson, supra. As referenced above, the Veteran underwent a VA audiological examination in July 2007. The examiner reviewed the Veteran's claims file and noted his reported history of in-service noise exposure. She also noted the Veteran's post-service occupational noise exposure as a factory worker for 33 years with hearing protection, and post-service recreational noise exposure from hunting without hearing protection. In light of the length of time between service and his first complaints of audiological problems and his history of post-service occupational noise exposure, the examiner concluded that the Veteran's current hearing loss and tinnitus were not related to his military service. In this case, the only evidence which purports to relate the Veteran's bilateral hearing loss and tinnitus to in-service noise exposure consists of the Veteran's own statements. However, it is now well established that laypersons, such as the Veteran, without medical training are not competent to relate his symptoms to a specific etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2010) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran can describe what he experiences, he is not able to provide competent evidence as to the etiology of his bilateral hearing loss and tinnitus. His assertions are accorded less weight than the competent medical evidence, the July 2007 VA examiner's opinion, that is against his claim. Competent evidence linking the Veteran's audiological disabilities to service is lacking in this case. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, there is no competent medical evidence that the Veteran was treated for hearing loss until over 55 years after separation from service or for tinnitus until over 35 years after separation from service, nor does he assert such. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Further, the Veteran has at no time asserted continuous audiological symptoms since service. Rather, at his July 2007 VA examination, he reported a gradual decline in hearing over the preceding 5 years and symptoms of tinnitus for the preceding 20 years. The evidence simply does not support a finding of continuous symptoms since active duty. Thus, the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including in-service noise exposure, and his current bilateral hearing loss or tinnitus. Although the Board notes the Veteran's current disability and in- service noise exposure, without evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claims of entitlement to service connection for bilateral hearing loss and tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Asthma Initially, the Board notes that there is no evidence that the Veteran suffered from asthma in service. A review of his service treatment records is negative for any treatment for asthma or other breathing problems. Additionally, the Veteran does not contend that he was diagnosed with asthma in service. Rather, he claims he was first diagnosed in the 1980s. See VA respiratory examination report, June 2007. Therefore, the Board will also consider whether the Veteran's asthma is the result of in-service asbestos exposure. There is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. With respect to the first element of Hickson, the Veteran has been diagnosed with bronchial asthma. See VA respiratory examination report, June 2007. Thus, the first element of Hickson is met. The Board notes in passing, however, that the Veteran has not been diagnosed with asbestosis or any other of the above-mentioned asbestos-related diseases. With respect to the second element of Hickson, the Veteran asserts that he was exposed to asbestos during service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. As noted above, the Veteran's service treatment records are completely negative for any respiratory complaints or treatment. However, also as noted above, his military specialty was motor machinist mate. According to a May 2002 VA memorandum entitled "Asbestos Claims," it is probable that a motor machinist mate was exposed to asbestos in service. As such, in-service asbestos exposure can arguably be conceded and the second element of Hickson is met. Although in-service exposure and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service asbestos exposure and his current asthma. See Hickson, supra. As referenced above, the Veteran underwent a VA examination for his asthma in June 2007. The examiner reviewed the Veteran's claims file, noting his probable in-service asbestos exposure and post-service treatment for asthma. He thoroughly examined the Veteran and obtained a chest x-ray and pulmonary function testing. The chest x-ray did not show evidence of asbestosis. The examiner concluded that the Veteran had a mild bronchial asthma disability. He opined that the Veteran's asthma was not related to asbestos exposure as asbestos does not cause asthma. Rather, he concluded that the Veteran's asthma was due to pollen and house dust allergies. The only other evidence to discuss in-service asbestos exposure is a July 2003 private treatment record from Dr. A. T., which notes that the Veteran was exposed to asbestos in service. The Veteran claims that this treatment record provides a medical nexus upon which to grant service connection. However, Dr. A. T. does not link the Veteran's reported asbestos exposure to his asthma or any other diagnosis. Rather, he simply notes that the Veteran reported a history of in-service asbestos exposure. This is insufficient to grant service connection. In this case, the only evidence which purports to link the Veteran's current asthma to his in-service probable asbestos exposure consists of the statements of the Veteran. However, as observed above, laypersons, such as the Veteran, are not competent to determine the etiology of a particular diagnosis. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1) (2010). Without medical training, the Veteran is simply not competent to opine on the etiology of his currently diagnosed asthma. Thus, there is no competent medical evidence to provide a nexus between the Veteran's service and his current asthma. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, there is no competent and credible evidence that the Veteran experienced any symptoms related to asthma prior to the 1960s, nor does the Veteran assert such. See Maxson, supra. As the Veteran does not claim continuity of symptomatology since service and there is no evidence to establish such, the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his in-service asbestos exposure, and his current asthma. Although the Board notes the Veteran's current disability and in-service exposure, without evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for asthma must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); see also Ortiz, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for asthma is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs