Citation Nr: 1322464	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  11-12 074	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure.

4.  Entitlement to service connection for a right knee disorder.

5.  Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Appellant, Spouse, and Brother-in-law


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from August 1953 to June 1955 in the Army.  He also had numerous years of subsequent service in the United States Army Reserve from 1955 to 1988, which included periods of active duty for training (ACDUTRA) from 1956 to 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in December 2009 and August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefits sought on appeal.  The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review.

A hearing was held on April 23, 2013, in Waco, Texas, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Id. at 5.  In light of the Court's decision in Clemons and the varying respiratory system diagnoses, the Board has recharacterized the issue on appeal as entitlement to service connection for a respiratory disorder.  This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons.

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).

The issues of entitlement to service connection for a right knee disorder and a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, bilateral hearing loss is causally related to noise exposure during active service.

2.  Resolving all doubt in the Veteran's favor, tinnitus is causally related to noise exposure during active service.

3.  A current respiratory disorder did not have its onset during active service and is not the result of an event, injury, or disease incurred in active service, to include conceded in-service asbestos exposure.



CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303 (2012).

3.  A respiratory disorder was not incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107(b) (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

As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein constitutes a complete grant of the benefits sought on appeal, no further action is required for those matters.

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2010 with regard to the claim of entitlement to service connection for a respiratory disorder.  The letter addressed all of the notice elements and was sent to the Veteran prior to the initial unfavorable decision by the RO in August 2010.  

The duty to assist was also met in this case.  Service personnel records as well as VA and private treatment records have been obtained and associated with the file.   The Board is cognizant that a copy of the Veteran's service treatment records from his period of active duty has not been associated with the claims file.  VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.  38 U.S.C.A § 5103A(c)(3); 38 C.F.R. § 3.159(e) (2012).  In a December 2009 VA Memorandum, the RO detailed its attempts to obtain the service treatment records, concluding that the Veteran's service treatment records were unavailable for review as they were destroyed in the 1973 fire at the National Personnel Records Center (NPRC).  In making a formal finding regarding the unavailability of these records, the RO noted that all efforts to obtain the information had been exhausted and that any further efforts to obtain the information would be futile.  The RO did send letters to the Veteran in July 2011 and November 2011 advising the claimant of the unavailability of his service treatment records.  The Board acknowledges that VA has a heightened duty to assist the Veteran in developing his claim since the records may have been lost.  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). 

VA examinations and medical opinions with respect to the issue on appeal were obtained in a July 2010 VA examination report (with January 2012 and July 2012 addendum report), a January 2011 VA examination report (with January 2011 addendum report, and an October 2012 VA medical opinion.  38 C.F.R. § 3.159(c)(4).  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 October 2012 VA medical opinion obtained in this case is adequate, as it was predicated on a full reading of the Veteran's claims file.  The VA physician considers all of the pertinent evidence of record and the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  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).

The available records and medical evidence have been obtained in order to make adequate determinations as to this claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Service Connection Claims

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  Service connection may also 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).  

As defined by statute and regulation, 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 injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012).  ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state.  38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505 (West 2002); 38 C.F.R. § 3.6(c)(3) (2012).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Service connection may be granted for 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 (West 2002).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, such other organic diseases of the nervous system (to include bilateral 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; 38 C.F.R. §§ 3.307, 3.309 (2012).  In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases specified at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or 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 Test are less than 94 percent.  38 C.F.R. §3.385 (2012).

The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations.  McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  Rather, VA Adjudication Procedure Manual, in electronic format, M21-1MR, contains guidelines for considering compensation claims based on exposure to asbestos.  See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 

VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.  Id.   

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.  M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). 

The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  Symptoms and signs include: dyspnea on exertion; end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; pulmonary function impairment; and, cor pulmonale which can be demonstrated by instrumental methods.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 (e). 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012).

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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

I.  Entitlement to Service Connection for Bilateral Hearing Loss and Tinnitus

As noted above, service treatment records from the Veteran's period of active duty from August 1953 to June 1955 were unavailable.  Reserve service examination reports (including an August 1974 quadrennial examination, a November 1977 appointment examination, September 1980 promotion examination, a January 1985 quadrennial examination, and May 1987 0/40 examination) revealed bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385.  A May 1987 Report of Medical History listed HFHL (high frequency hearing loss).  

The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was Polelineman and that he was attached to a signal company.  Additional service personnel records showed a principal duty of Radio Mech (Mechanic) during active duty.  

Post-service private treatment notes dated in February 2006 from S. N., M. D. showed complaints of "so-so" hearing.  In December 2007, the Veteran was treated for an earache in the right ear. 

In his January 2010 claim, the Veteran asserted that he was exposed to noise during service from earphones listening to communications between his unit and headquarters as well as from the loud squelch of the radio. 

In a July 2010 VA audio examination report, the Veteran complained of gradual bilateral hearing loss and constant bilateral tinnitus since he was a radioman in the Army from 1953 to 1955.  He reported being in intelligence during his reserve service from 1955 to 1987.  He detailed that he had military noise exposure without hearing protection, wore "loud" earphones as a radio operator, and was exposed to artillery fire.  He complained of constant bilateral tinnitus that had its onset during active duty.  The Veteran reported a history of military noise exposure from field communication systems around heavy machinery and no significant occupational or recreational noise exposure.  He reported civilian noise exposure working for General Tire and Rubber as a production supervisor for 31 years without use of hearing protection.  Pure tone thresholds, in decibels, were reported as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
45
50
70
70
70
LEFT
45
50
75
75
80

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 78 percent in the left ear.  After reviewing the claims file and examining the Veteran, the examiner, a VA audiologist, diagnosed bilateral moderate to severe sensorineural hearing loss and constant, bilateral tinnitus.  He opined that tinnitus was as likely as not a symptom associated with the hearing loss.  The examiner further opined that bilateral hearing loss and bilateral tinnitus were less likely as not (less than 50/50 probability) caused by or a result military noise exposure.  He reported that based on the absence of service treatment records from active service, the absence of any evidence of loss prior to 1974, the absence of any tinnitus complaint, and the Veteran's civilian occupation in production with General Tire and Rubber, it was less likely as not hearing loss and tinnitus were caused by or the result of military related noise exposure. 

In his August 2010 notice of disagreement, the Veteran reiterated his exposure to noise during service from radios and artillery pieces.  He indicated that his signal company was attached to an Artillery unit, submitting multiple documents including a temporary pass signed by an artillery officer, a meal card showing he was in front an artillery unit, and notice he was assigned a carbine/rifle as part of an AAA (Anti Aircraft) command. 

In a September 2010 VA examination addendum, the July 2010 VA examiner reviewed additional evidence added to the file, to include the service documents discussed in the paragraph directly above.  The examiner noted that even in light of the new evidence, there was no evidence of hearing loss or tinnitus in service and there was no complaint of hearing loss prior to 1974.  He indicated that his opinion was unchanged due to no evidence of hearing loss or tinnitus complaint during active duty and evidence of significant occupational noise exposure. 

In his May 2011 substantive appeal, the Veteran reported that he was required to wear hearing protection while working at the tire company post-service and claimed that his conditions existed long before he worked for the tire company. 

During his April 2013 Board hearing, the Veteran asserted that he had suffered from current bilateral hearing loss and tinnitus caused by events during active service.  He indicated that headset noise causing by earphones he used on active duty as a radioman was constant and that the radio emitted loud squelch as well.  He reported experiencing hearing loss and ringing in his ears in service after artillery training blasts and radio usage at Fort Bragg during active service.  The Veteran's family members testified that the Veteran had hearing loss for many decades.  The Veteran further highlighted that he was in management when working at General Tire after service and in an office most of the time not on the production line/floor.

As an initial matter, the Board notes that the post-service July 2010 VA audio examination results did reflect a diagnosis of constant bilateral tinnitus and bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385.  The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments.  In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded.  38 U.S.C.A. § 1154(a).  In-service incurrence of injury is therefore met as to bilateral hearing loss and tinnitus.  

The outstanding question is therefore whether there is a causal relationship or nexus between the Veteran's current bilateral hearing loss and tinnitus and in-service noise exposure.  

In the July 2010 examination report and September 2010 addendum, the examiner opined that it was less likely as not hearing loss and tinnitus were caused by or the result of military related noise exposure.  However, the Board notes that he did not discuss or consider the Veteran's lay assertions concerning onset or continuity of his claimed disorders.  The Board further notes the holding in Hensley v. Brown, 5 Vet. App. 155 (1993), which reflected that the requirements for service connection for hearing loss, as defined in 38 C.F.R. § 3.385, need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  

In addition, the examiner completely neglected to discuss the affects of any noise exposure experienced during reserve service in light of the clear findings of bilateral hearing loss for VA purposes found during reserve service starting in 1974, to include during numerous periods of ACDUTRA or INACDUTRA during reserve service.  The Board must highlight that the evidence of record does not discuss in any way as to whether the claimed hearing loss and tinnitus disorders could due to noise exposure experienced during periods of ACDUTRA or INACDUTRA during reserve service.

As such, the Board finds that the July 2010 examination report and September 2010 addendum are not wholly adequate for the purpose of basing a decision as the examiner failed to properly consider the Veteran's competent statements of in-service noise exposure as well as continuity of symptomatology since service and possible noise exposure experienced during periods of ACDUTRA or INACDUTRA during reserve service.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (observing that "the medical examiner impermissibly ignored the appellant's lay assertions that he sustained a back injury during service").  Based on the foregoing, the Board must also find that the July 2010 examination and September 2010 addendum are of diminished probative value.  

In written statements of record and during his April 2013 hearing, the Veteran asserted that he was exposed to noise from artillery training blasts as well as his duties as a radioman during service without any issued hearing protection.  He further contended that he had continuity of bilateral hearing loss and tinnitus symptomatology since service.  The Veteran argued that his current bilateral hearing loss and tinnitus were incurred as a result of his in-service noise exposure.  

The Board observes that hearing loss and tinnitus are subjective and the type of condition to which lay testimony is competent.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  It finds the Veteran's assertions concerning in-service noise exposure and continuity of hearing loss and tinnitus symptomatology since service to be consistent and credible.  Caluza v. Brown, 7 Vet. App. 498 (1995).  It is also facially plausible that the Veteran has suffered from bilateral hearing loss and tinnitus since his conceded noise exposure during active service.  Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing).  

In view of the totality of the evidence, including the Veteran's documented in-service duty assignment, the conceded in-service noise exposure during active service, the unavailability of the service treatment records from active service from 1953 to 1955, possible noise exposure experienced during periods of ACDUTRA or INACDUTRA during decades of reserve service, current findings of bilateral hearing loss and tinnitus, the diminished probative value of the July 2010 examination and September 2010 addendum opinion of record, and the credible lay assertions of record, the Board finds that bilateral hearing loss and tinnitus are as likely as not related to noise exposure during active service.  

Moreover, pertinent to tinnitus, the Board notes that "an associated hearing loss is usually present" with tinnitus.  See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id.  Additionally, "high frequency tinnitus usually accompanies [noise-induced] hearing loss."  The MERCK Manual, Section 7, Ch. 85, Inner Ear.  In addition, the July 2010 VA examiner specifically opined that tinnitus was as likely as not a symptom associated with the diagnosed bilateral hearing loss.  

Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral hearing loss and for tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

II.  Entitlement to Service Connection for Respiratory Disorder

The Veteran contends that his claimed respiratory disorder was caused by his military service.  More specifically, he has asserted that asbestos exposure during active service caused him to develop a respiratory disorder many years after service.

As noted above, service treatment records from active service were unavailable.  Service personnel records showed the Veteran was stationed at Fort Bragg, North Carolina, during active service from 1953 to 1955.

A post-service May 2009 chest X-ray report from a private treatment provider listed an impression of mild opacity seen in the right lower lobe and right upper lobe that may relate to pneumonia.  A December 2009 private chest X-ray report listed an impression of interstitial opacities suggestive of interstitial lung disease.  Correlation with clinical history was recommended.  Focal opacity was also seen in the right upper lobe which may be related to inflammatory process.  Radiographic follow-up was recommended.  The Veteran was noted to have a history of smoking.  An additional December 2009 treatment record listed assessments of abnormal lung shadow on chest X-ray, patient asymptomatic, and cigarette smoking counseled.

Additional private treatment notes from D. A. B., D. O. dated from December 2009 to March 2010 revealed findings of asbestosis.  In December 2009, the examiner listed an assessment of other diseases of the lung, not elsewhere classified and nonspecific (abnormal) findings on radiological and other examination of the lung field.  The examiner noted that the Veteran had a strong history of exposure to asbestos at General Tire.  A January 2010 private chest X-ray report revealed no evidence of acute chest disease.  A January 2010 CT scan of the chest without contrast revealed mild diffuse bronchiectasis in the lungs, focal areas of parenchymal scarring and/or fibrotic changes in the lungs bilaterally, and no pulmonary masses or worrisome nodules identified.  Private pulmonary function testing (PFT) from February 2010 was noted to show dyspnea.  In that record, the Veteran was noted to be a nonsmoker and to have been exposed to asbestos and dust.  

Additional private treatment records dated in February 2010 to March 2010 from D. A. B., D. O. showed findings of obstructive chronic bronchitis without exacerbation that improved with Spiriva inhaler use and asbestosis.  The examiner noted that the Veteran had exposure from 1956 to 1987 and a chest X-ray consistent with asbestosis exposure.  Additional findings of other diseases of the lung, not elsewhere specified were noted with the examiner highlighting that the Veteran had a CT with peripheral based fibrotic changes with some pleural thickening and no effusions that was consistent with asbestosis exposure. 

In his January 2010 claim, the Veteran asserted that he was exposed to coal burning stoves while stationed at Fort Bragg, North Carolina.  In an April 2010 written statement, the Veteran indicated that he was exposed to asbestos while living in old barracks stationed at Fort Bragg.  He reported that he had never smoked cigarettes, worked as an electrician apprentice and store keeper after service, and was then employed by General Tire and Rubber for 31 years.  He also submitted an internet article discussing the poor living conditions in the barracks at Fort Bragg in 2008.

In a July 2010 VA respiratory conditions examination report, the Veteran complained of a cough on an intermittent basis.  Physical findings included a few left basilar rhonchi and dyspnea at rest as well as on exertion.   After reviewing the file and examining the Veteran, the examiner, a VA physiatrist, diagnosed asbestosis and chronic obstructive pulmonary disease (COPD).  It was noted that 
prior PFTs showed obstructive symptoms with placement on bronchodilators.  It was further noted that chest X-ray reports revealed pleural thickening and were consistent with asbestos exposure.  The examiner then opined that it was less likely as not the Veteran's current diagnosis asbestosis was related to the more than likely exposure to asbestos type material which was structurally in the buildings at the time of service. 

In his August 2010 notice of disagreement, the Veteran reiterated his exposure to asbestos in old barracks at Fort Bragg.  He submitted a copy of a December 1991 court case showing that while varying percentages of asbestos was found in some of the company's products, the employees of General Tire failed to provide sufficient evidence of actual exposure to asbestos from the company's products during their employment.

In his May 2011 substantive appeal, the Veteran reported that he was required to wear a mask while working at the tire company post-service.

In a January 2011 VA respiratory conditions examination report, the examiner specifically indicated that the claims file was not available.  The Veteran complained of shortness of breath with walking short distances and soreness in his chest.  He denied smoking and no other breathing problems were reported.  The examiner listed a diagnosis of asbestosis, opining that the Veteran's asbestosis was less likely as not (less than 50/50 probability) caused by or the result of asbestos exposure in service.  The examiner indicated that there were no records to show there was asbestos in the Veteran's in-service sleeping quarters, that his occupational exposure to asbestos while working at General Tire for years was unknown, and that his history showed no military or otherwise where he was involved in any work with asbestos.   A January 2011 chest X-ray revealed increased reticular density in the left lower lung field.  Linear densities in the right upper lung field and in the left mid and lower lung field could represent chronic mild interstitial fibrosis and/or scarring.  On lateral view, there was a small, nodular density in the upper retrosternal lung field that could represent a small pleural plague and possibility of a small lung nodule could not be excluded.  In view of the given history of asbestosis, it was noted that a high resolution CT scan of the chest without IV contrast might be of help in further evaluation.  In a January 2011 addendum report, the examiner indicated that there was no change in diagnosis or medical opinion after his review of the claims file or chest X-ray.   

In a January and September 2012 addendum reports to the July 2010 VA examination, the VA physiatrist simply noted review of the claims file.  The VA physiatrist then opined that it was as likely as not that the Veteran's asbestosis related symptoms and chest x-ray findings were due to asbestos exposure, which was structurally in the buildings during service time. 

In an October 2012 VA medical opinion, the examiner, a VA physician, noted his review of the claims file for a determination as to whether the Veteran has asbestosis and whether asbestosis was service related.  He highlighted much of the evidence discussed above and noted the inconsistencies in the Veteran's smoking history.  The examiner included PFT findings as well as findings from a July 2012 VA CT scan in his report.  PFT findings were noted to be normal with isolated mild reduction of the residual volume of no psychological significance.  The July 2012 CT scan revealed scattered moderate fibrotic changes resulting in numerous linear and nodular opacities.  Resolving small foreign nodules from tiny areas of scarring and/or fibrosis was limited.  A five millimeter right upper lobe nodular opacity appeared minimally increased in size and was indeterminate.

After his extensive review of the record, the VA physician indicated that it was his impression that the Veteran had asbestos exposure, thought to be two years at Fort Bragg and 30 years at General Tire.  He highlighted that exposure at Fort Bragg must have been extremely minimal, as it sounded like asbestos was around insulation and the Veteran did not participate in any activities pulling asbestos into the air like demolition or construction.  The examiner further noted that the Veteran suffered from obstructive bronchitis or bronchiectasis which could come partly from smoking as well as many other exposures.  Chest X-rays were noted to show both scarring in the lungs which were consistent with both bronchiectasis and sometimes interstitial lung disease.  However, the examiner specifically found that there were no clear marking of diffuse interstitial lung disease across the images.  It was clear from the record that Veteran did get better with use of inhalers, which was something that does not occur with asbestosis (a restrictive type lung condition).  He concluded that the Veteran likely had asbestos exposure but that he does not have asbestosis, which was highlighted to be a progressive deteriorating restrictive lung disease.  The examiner indicated that if the Veteran did have any exposure to "asbestosis", it was more likely than not that he had most of it at General Tire.  The examiner concluded that the Veteran's asbestos exposure was less likely to be related to any military service. 

During the April 2013 Board hearing, the Veteran asserted that pipes in his in-service barracks and mess hall were covered with asbestos and that the boiler in the barracks at Fort Bragg was covered with asbestos.  

Based on the locations and circumstances of the Veteran's service in the Army and the findings of medical providers above, the Board accepts for the purpose of this decision that the Veteran did have some asbestos exposure and exposure to coal stoves during service as he claims.  However, even accepting that the Veteran had the exposure he claims during service, the evidence still does not establish that he has a current respiratory disability which was incurred during service as a result of those environmental exposures.

A finding of a nexus or casual relationship between the Veteran's currently diagnosed respiratory disorders and in-service events is not shown.  In this case, findings of any respiratory disorder were first shown many years after separation from active service and cannot be presumed to have been incurred during service.  The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The evidence of record reveals that the Veteran has a current diagnosis of bronchitis which is more likely the result of other exposures, to include smoking, than it is the result of any other factor including asbestos exposure.  This diagnosis is supported the PFT results of record, including those contained in the private examination reports, all of which show the presence of minimal obstructive respiratory defect.  None of the PFTs reveal the presence of restrictive lung defect which is indicative of an asbestos-related disorder.  In addition, the credible evidence of record establishes that the Veteran does have asbestos exposure but does not have any asbestos-related disability.  There is no credible evidence linking any current respiratory disorder, including bronchitis, to active service, to asbestos exposure during service, or to any other environmental exposure during service. 

Here, private treatment providers did not provide any evidence linking any respiratory disorder to in-service asbestos exposure.  Additional VA treatment provider opinions of record in 2010 and 2011 also lack probative value, as they lack adequate rationale and were based on limited or no review of the record.  However, the October 2012 VA examiner based his opinion on review of the Veteran's entire claims file, extensively discussed the medical evidence of record as well as the lay assertions of the Veteran, and provided a detailed rationale for their conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).

The Board may appropriately favor the opinion of one competent medical authority over another.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991).  In this case, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's present respiratory disorder was incurred due to events during active service weighs against the claim.  Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).

The Board acknowledges the Veteran's contentions that his current respiratory disorder is related to his in-service asbestos exposure.  Although the Veteran might sincerely believe that his current respiratory disorder is related to events during service, as a layperson, his statements are not competent evidence of a medical opinion regarding the etiology of his respiratory disorder.  See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions).

In light of the cumulative record discussed above, the criteria to establish entitlement to service connection for a respiratory disorder has not been established, either through medical or lay evidence.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure, is denied.



REMAND

The Board's review of the claims file reveals that further development on the matters of entitlement to service connection for a right knee disorder and for a left knee disorder is warranted.  

In multiple written statements of record as well as during his April 2013 Board hearing, the Veteran contended that he has suffered from knee injuries when falling off a pole during service.  He further asserted that his knees have bothered him since that injury.

The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was Polelineman and that he was attached to a signal company.  Additional service personnel records showed a principal duty of Radio Mech (Mechanic) during active duty.  As noted above, the Veteran's service treatment records are unavailable for review and are presumed to be destroyed in the July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri.  In such cases, the United States Court of Appeals for Veterans Claims (the Court) has held that, where the Veteran's service treatment records were unavailable, through no fault of the Veteran, there is a "heightened duty" to assist the Veteran in the development of the case.  See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

A post-service April 2009 private X-ray revealed left knee mild tricompartment osteoarthritis.  Additional private treatment notes dated in September and October 2009 showed complaints of bilateral knee pain and an assessment of anserine bursitis.  Private treatment records dated in December 2009 and March 2010 revealed findings of knee arthralgias.  Additional private treatment notes dated in 2011 showed findings of severe left knee degenerative joint disease and right knee early arthritis.  In June 2011, the Veteran underwent a total left knee arthroplasty.  In a November 2011 statement, a private physician, C. S. C., M. D., discussed the Veteran's reported in-service knee injury in 1954 and noted that he could not say for certain that there was a direct correlation between his injuries and the subsequent arthritis.  However, he indicated that there was a definite possibility, as it was well known that significant knee trauma was associated with arthritis in the future.

In light of the cumulative record discussed above, to include the Veteran's competent assertions of an in-service knee injury and the heightened duty to assist when service treatment records are unavailable, the AMC should arrange for the Veteran to undergo a VA examination to clarify the nature and etiology of his claimed left and right knee disorders on appeal.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for entitlement to service connection for left and right knee disorders.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information.  The Veteran and his representative must then be given an opportunity to respond.

2.  The Veteran also should be afforded a VA examination by an examiner (preferably a physician) with sufficient expertise to determine the nature and etiology of any diagnosed left or right knee disorder.  The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner.  A notation to the effect that this record review took place should be included in the report of the examiner.

Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed left or right knee disorder is casually related to his period of active service.  In doing so, the examiner should acknowledge and discuss the statements from the Veteran discussing his in-service knee injury, the onset of knee pain in service, continuity of knee symptomatology since service, and post-service treatment for the claimed conditions of record, to include the November 2011 private physician statement.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report.  38 C.F.R. § 3.655 (2012).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record.  If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable.

4.  Thereafter, the AMC must review the claims folder to ensure that the foregoing requested development has been completed.  In particular, review the requested medical examination to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.  After completion of the above and any additional development deemed necessary, readjudicate the issue on appeal, with consideration of all evidence obtained since the issuance of the supplemental statement of the case (SSOC) in December 2012.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2012).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs