Citation Nr: 1318779 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 12-31 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of pneumonia, including lung disease. REPRESENTATION Appellant represented by: J. P. DePlois, Attorney at Law ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1955 to January 1957. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for bilateral hearing loss and pneumonia. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a current diagnosis of sensorineural bilateral hearing loss and lung disease (chronic obstructive pulmonary disease (COPD) and asthma). 2. The Veteran was exposed to loud noises (acoustic trauma) during service. 3. Symptoms of bilateral hearing loss were not chronic in service and have not been continuous since service separation. 4. Bilateral hearing loss is not etiologically related to service 5. The Veteran was treated for pneumonia during service with no residuals. 6. The Veteran's COPD and asthma are not etiologically related to service, including in-service pneumonia. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for residuals of pneumonia, including lung disease, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely letter dated March 2010, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Veteran's service treatment records are not on file and, according to the record, were apparently destroyed in a July 1973 fire at the National Archives and Records Administration. See RO memorandum dated August 2010 (formal finding of unavailability). The March 2010 notice letter advised the Veteran of this and requested that he provide NA Form 13055 in an effort to determine whether alternative records exist that may be helpful in his case. The Veteran has not submitted the requested form; therefore, there is no further duty to assist the Veteran. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes post-service VA treatment records, the Veteran's statements, and statement's from the Veteran's fellow servicemembers. The Veteran was also afforded a VA audiological examination in connection with his service connection claims for bilateral hearing loss in July 2010. To that end, 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). The Board finds that the VA opinion and findings obtained in this case are adequate. The VA nexus opinion provided considers all the pertinent evidence of record, the Veteran's reported in-service and post-service noise exposure, and provides a complete rationale for the opinions stated. The Board acknowledges that the Veteran has not been afforded a VA examination regarding his claim for service connection for residuals of pneumonia, including lung disease. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this regard, the Board finds that the Veteran has submitted no evidence other than his own statements showing a positive association between his lung disease (COPD and asthma) and service, including the in-service pneumonia episodes. Accordingly, the Board finds that no further development of the Veteran's claim for service connection for lung disease is required as there is no evidence indicating that the Veteran's COPD and asthma may be associated with in-service pneumonia. Additionally, there is sufficient competent medical evidence on file for VA to make a decision on the claim, as there is competent evidence relating the COPD to a post-service exposure to a fire. See 38 U.S.C.A. § 5103A(d)(2); McLendon, 20 Vet. App. 79; 38 C.F.R. § 3.159(c)(4); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination" under the standard of 38 U.S.C.A. § 5103A(d)(2)(B)). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Significantly, the Veteran and his representative have not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 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. 38 C.F.R. § 3.303(d). The condition of sensorineural bilateral hearing loss (organic disease of the nervous system) is considered a chronic condition listed under 38 C.F.R. § 3.309(a); as such, 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In contrast, the issues of service connection for pneumonia residual, including lung disease, is not a chronic condition under 38 C.F.R. § 3.309(a) and will be adjudicated using the general principles of service connection. Generally, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Where service treatment (medical) records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46, 51 (1996). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Bilateral Hearing Loss The Veteran contends generally that his current bilateral hearing loss is due to noise exposure during service while participating in artillery training. He has not provided specifics in support of his claim. He indicated through his attorney that he was going to present further evidence and argument at a requested hearing; however, he then cancelled the hearing without further supporting evidence or argument in support of the claim. A hearing loss disorder for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385. See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). After a review of all the evidence, the Board first finds that the Veteran has currently diagnosed bilateral hearing loss for VA purposes during the appeal period. See 38 C.F.R. § 3.385. On the authorized VA audiological evaluation in July 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 50 65 75 LEFT 35 45 65 65 70 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 percent in the left ear. The auditory thresholds were 40 decibels or greater in four out of the five frequencies bilaterally. On the question of in-service injury or disease, the Board finds that the Veteran was exposed to loud noises in service. The Veteran is both competent and credible to report that he was exposed to loud noise (acoustic trauma) in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Veteran's DD Form 214 demonstrated that he was trained in field artillery. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that exposure to hazardous noise for veterans with a duty MOS of field artillery as "highly probable." Also of record is a statement from T.J. who stated that he served with the Veteran in the artillery unit and they were exposed to gun fire without hearing protection. For these reasons, the Board finds the Veteran was exposed to loud noise during service. Next, the Board finds that symptoms of bilateral hearing loss were not chronic in service and have not been continuous since service separation in 1957. As noted above, service treatment records are unavailable as they were destroyed in a July 1973 fire at the National Archives and Records Administration. See RO memorandum dated August 2010 (formal finding of unavailability). The March 2010 notice letter advised the Veteran of this and requested that he provide NA Form 13055 in an effort to determine whether alternative records exist that may be helpful in his case; however, the Veteran has not submitted the requested form. The Veteran has not provided details about the specific circumstances of any in-service hearing loss, including any purported in-service onset date. Considering the lay and medical evidence that is of record as it relates to the relevant finding of in-service symptoms of hearing loss, the Board finds that the weight of the evidence demonstrates that symptoms of hearing loss were not chronic in service. Service treatment records are unavailable and, thus, cannot show evidence of either in-service hearing loss or related complaints or a lack thereof. For this reason, the Board will not draw any negative inference based on the absence of complaints or treatment during service. The Veteran has not alleged that hearing loss symptoms were chronic in service; instead, the Veteran reported that he first noticed his hearing loss after service separation. In this regard, the Board finds that the Veteran has provided inconsistent statements about the onset of his hearing loss, but his histories reflect assertion of onset of hearing loss after service. For example, during the July 2010 VA audiological evaluation the Veteran stated that he became aware of his hearing loss about 10 to 15 years ago (i.e., between 1995 and 2000), which is over 38 years after service separation. Post-service VA treatment records, however, are absent of complaints or treatment for hearing loss symptoms until 2010. Further, despite claims of continuous hearing problems since service separation, VA treatment records reveal that the Veteran has never had or been prescribed hearing aids. In a February 2004 VA treatment record, the Veteran was treated for fluid in the left ear. Upon evaluation, the Veteran reported that he was not having any ear symptoms, including no hearing loss. The Board finds that the reports by the Veteran made to health care professionals for treatment purposes, to be more probative than the more inconsistent statements regarding hearing loss symptoms since service separation made pursuant to the recent claim for compensation benefits. See Cartwright, 2 Vet. App. 24; Pond v. West, 12 Vet. App. 341 (1991) (although a veteran's statements must be taken into account, self-interest in making such statements may be considered); see also Fed. Rules of Evid. 803, Hearsay Exception 4. Such evidence tends to show that the history of onset of hearing loss symptoms in 2010 is more consistent with the other evidence. Moreover, even though the Veteran did seek treatment in 2010, the Board finds that the absence of post-service complaints, findings, diagnosis, or treatment for over 53 years after service is another factor that tends to weigh heavily against a finding of continuous symptoms of bilateral hearing loss after separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson, 12 Vet. App. at 453 (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). For these reasons, the Board finds that symptoms of bilateral hearing loss were not chronic in service and have not been continuous since service separation. The Board further finds that the weight of the evidence demonstrates the Veteran's currently diagnosed bilateral hearing loss is not related to active service, specifically the in-service noise exposure. As noted above, the Veteran was afforded a VA audiological examination in January 2008. The VA examiner noted that the Veteran, at the time of the VA examination, was 74 years old and some hearing loss could be attributed to the effects of the normal aging process. The VA examiner noted that this was consistent with the Veteran's statements that his hearing loss had gradually worsened. Although the VA examiner recognized that the Veteran was exposed to artillery fire in service, the Veteran also reported that he worked for 15 years in the logging industry after service. The VA examiner noted that the logging industry was known to involve excessive noise and the Veteran stated that ear protection was not worn. The Veteran also reported that he was a log truck driver and did commercial fishing, occupations which the VA examiner found were likely to have exposed the Veteran to loud noises and which were detrimental to the Veteran's hearing. Recreationally, the Veteran noted that he hunted in the past without hearing protection. For these reasons, the VA examiner opined that the hearing loss had a later onset than service and was most likely caused by occupational or recreational noise exposure. The Board finds the January 2008 VA audiological examination to be highly probative evidence that the Veteran's hearing loss is not related to service. The VA examiner reviewed the claims file, performed audiometric testing, noted the Veteran's reported history, and supported the opinion with a rationale that is consistent with the evidence and the facts as found in this decision. See Prejean, 13 Vet. App. at 448-9. The Board has considered the Veteran's statements asserting a nexus between his currently-diagnosed bilateral hearing loss and active duty service. While the Board acknowledges that a lay person is competent to report symptoms as they come to him through his senses, bilateral hearing loss is not the type of disorder that a lay person can provide competent evidence on questions of etiology, especially in this case, where the Veteran was exposed to significant post-service occupational noise and the question involves damage to the nerves (sensorineural hearing loss) from acoustic trauma. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Here, the etiology of the Veteran's bilateral hearing loss is complicated given the Veteran's own statements about post-service occupational and recreational noise exposure and the alleged onset date 10 to 15 years after service separation. For example, although the Veteran has reported that he was exposed to loud noise during service, he has provided inconsistent statements about the onset date and circumstances of his hearing loss. Moreover, the Veteran also reported significant occupational noise exposure (working as a logger and truck driver) and recreational noise exposure (hunting without hearing protection). The July 2010 VA examiner also noted that the Veteran's age may have contributed to his hearing loss. Moreover, the Veteran himself reported that he first began noticing his hearing loss in approximately 1995, 38 years after service separation. The Board finds that the Veteran does not have the training, experience, or medical knowledge to render a competent nexus opinion to service. Instead, the Board attaches greater probative weight to the July 2010 VA audiologist's opinion than to the Veteran's lay statements. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the claim must be denied. Service Connection for Pneumonia Residuals The Veteran contends that he was treated for pneumonia during service in March 1955 and in August or September 1955. See Veteran's September 2010 statement. According to the Veteran, the in-service pneumonia "weakened his lungs" and he essentially contends that his current lung disease (COPD and asthma) are residuals of the in-service pneumonia. See Veteran's March 2010 claim for VA compensation. The Board notes that, unlike sensorineural bilateral hearing loss, lung disease, including COPD and asthma, are not chronic diseases under 38 C.F.R. § 3.309(a); as such, 38 C.F.R. § 3.303(b) does not apply. See Walker, 708 F.3d 1331. Accordingly, the general principles of service connection will be used in adjudicating the claim. At the outset, the Board finds that the Veteran has currently diagnosed COPD and asthma. See January 2004 and February 2006 VA treatment records. The Veteran was also treated for bouts of pneumonia in June 2007 and July 2010. See June 2007 and July 2010 VA primary care notes. On the question of in-service injury or disease, the Board finds that the Veteran's statements regarding treatment for pneumonia in-service to be credible. The Veteran has consistently reported that he was treated for pneumonia during service. See Veteran's statement dated March 2010, September 2010, and August 2010. Also of record is a statement from W.E. who served with the Veteran during service and confirmed the Veteran's contentions of treatment for pneumonia during service. Service treatment records are unavailable for review and, therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran was diagnosed and treated for pneumonia in service. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was treated for pneumonia during service. See O'Hare, 1 Vet. App. 365. That notwithstanding, the Board finds that the Veteran is neither competent nor credible to render an opinion on the issue of whether currently diagnosed COPD and asthma is related to the in-service pneumonia episodes. In this regard, the Board finds that the weight of the evidence demonstrates that the Veteran's in-service episodes of pneumonia were treated without residuals. Post-service treatment records demonstrate that the Veteran was diagnosed with COPD and asthma in approximately 2004, 47 years after service separation. The Board finds that this evidence weighs against the Veteran's contention that he experienced pneumonia residuals since service separation. Moreover, a review of all VA treatment notes of record does not demonstrate that the Veteran's COPD and asthma are residuals of the in-service pneumonia episodes. Instead, the Veteran's lung disease has been attributed to occupational exposure from a fire in the town of Bandon by competent medical evidence. See August 2012 VA treatment record. Additionally, except for statements made pursuant to his claim for VA compensation purposes, the record does not demonstrate that the Veteran has ever attributed his COPD, asthma, and/or post-service bouts of pneumonia to active duty service to any VA medical professional. See Cartwright at 25; Pond, 12 Vet. App. 341 (interest may affect the credibility of testimony). In this case, the competent medical evidence of record does not demonstrate the necessary medical nexus between the Veteran's lung disease, manifested many years after service, and the Veteran's period of active duty service. For these reasons, the Board finds that the weight of the evidence is against a finding that the Veteran's COPD and asthma are etiologically related to the in-service episodes of pneumonia. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for pneumonia residuals, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral haring loss is denied. Service connection for pneumonia residuals, including lung disease is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs