Citation Nr: 1325381 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-36 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a lung disorder, to include emphysema and chronic obstructive pulmonary disease (COPD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In May 2007, the Veteran testified at a hearing before a Decision Review Officer (DRO); in February 2012, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings are of record. The case was remanded in December 2010 to afford the Veteran a hearing and in April 2012 to obtain a Social Security Administration (SSA) decision and to afford the Veteran VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the most recent supplemental statement of the case (SSOC), additional evidence consisting of a statement from the Veteran was received at the RO. If additional evidence is received prior to the transfer of records to the Board, an SSOC must be issued to the Veteran as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issues on appeal. 38 C.F.R. § 19.37(a) (2012). See also 38 C.F.R. § 20.1304. In this case, the newly received evidence is duplicative of the evidence already considered by the RO and Appeals Management Center (AMC). Therefore, a remand for the issuance of an SSOC is not necessary. The Veteran was previously represented by a private attorney who had not been accredited to represent claimants before VA. The Veteran was informed of this in a May 2013 letter from the RO, which gave him the option of representing himself, appointing an accredited Veteran's service organization, or appointing a different private attorney or agent. The private attorney was also informed that she was not accredited. Review of the claims folder does not reveal that the Veteran provided a response to this letter or that a new representative was appointed. As such, the Board considers the Veteran to be representing himself and will proceed accordingly. FINDINGS OF FACT 1. Bilateral hearing loss was not present during service, sensorineural hearing loss was not manifest within a year of separation from service, and did not develop as a result of any incident during service. 2. A lung disorder, to include emphysema and COPD, was not present during service and did not develop as a result of any incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for a lung disorder, to include emphysema and COPD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a letter dated in May 2006. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, SSA records, and also secured examinations in furtherance of his claims. The case was remanded to obtain the decision awarding SSA benefits; a negative response from the SSA was received in August 2012. The Veteran was notified of the negative response and asked to submit a copy of the decision. He submitted a copy of the award letter, but not the actual decision. The Board finds that VA has exhausted all efforts to obtain the SSA decision. Pertinent VA examinations were obtained in August 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well-supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining VA examinations has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is included in 38 C.F.R. § 3.309(a) as an organic disease of the nervous system. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss related to in-service noise exposure. See, e.g., April 2006 claim. As service connection for tinnitus as a result of noise exposure in service has already been granted, in-service acoustic trauma is conceded. The Veteran's STRs include an enlistment examination in January 1964 that reported his hearing acuity in puretone thresholds. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As this evaluation was conducted prior to October 1967, the Board has converted the ASA units to ISO units as shown below (in parentheses). The Veteran had puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 10 (20) 0 (10) XXXX 5 (10) LEFT 5 (20) 5 (15) 0 (10) XXXX 10 (15) Examination revealed clinically normal ears and drums. In the accompanying report of medical history, the Veteran denied having ear trouble. His January 1967 separation examination showed puretone thresholds, converted from ASA units to ISO units, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) 0 (10) XXXX 5 (10) LEFT -5 (10) 0 (10) 0 (10) XXXX 15 (20) Examination revealed clinically normal ears and drums. In the accompanying report of medical history, the Veteran denied having ear trouble. None of his STRs reflect complaints of, treatment for, or a diagnosis of, bilateral hearing loss. Post-service medical records show that the earliest evidence of a sensorineural bilateral hearing loss disability as defined by VA is in September 2005. The audiologist cited military noise exposure, but there also appeared to be significant post-service occupational (construction, maintenance) and recreational (hunting) noise exposure. No opinion regarding the etiology of the Veteran's bilateral hearing loss was provided. At his May 2007 DRO hearing, the Veteran testified that he recalled what he guessed was hearing loss in service. May 2007 Hearing Transcript (H.T.) at 4. He did not know if it was hearing loss, but he had a feeling like blockage, but then it would come back. Id. The Veteran guessed that the first time his hearing was tested was in the early 1980s; he testified having problems with hearing loss since the 1980s. Id. at 4-5. At the February 2012 hearing, the Veteran again testified that he had a feeling that his ears were clogged up in service after basic training and firing weapons. February 2012 Hearing Transcript (T.) at 12. He also testified that the feeling of his ears being clogged would go away and not last very long. Id. at 13. The Veteran was afforded a VA examination in August 2012. Testing revealed a sensorineural bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. The examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. Although noise exposure had been conceded based upon weapons fire, a separation examination showed hearing to be within normal limits with no significant worsening compared to an examination at time of entry. In addition, the Veteran reported he had hunted for the past 15 years (wearing hearing protection) and had done carpentry (wearing hearing protection). It was the examiner's opinion that the Veteran did not meet the criterion of a probability of the hearing loss being 50 percent or greater due to military noise exposure. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is not warranted. Although in-service acoustic trauma has been conceded and the Veteran has a current bilateral hearing loss disability, the evidence fails to show that his current disability is related to his military service. The pertinent evidence of record fails to show that the Veteran's bilateral hearing loss is related to his in-service acoustic trauma. The only medical opinion of record, that of the VA examiner, shows that the Veteran's bilateral hearing loss is not related to his military service. As this opinion is supported by a rationale and was formed after an examination of the Veteran and a review of his records, the Board accords it great probative value. Furthermore, the Veteran's treatment records do not show an opinion relating the Veteran's bilateral hearing loss to his military service. The September 2005 record, while noting the Veteran's in-service acoustic trauma, also indicates that the Veteran had significant post-service occupational and recreational noise exposure. No medical professional has provided any opinion indicating that the Veteran's bilateral hearing loss is related to his in-service acoustic trauma. The Board has also considered whether the Veteran's statements establish a nexus, especially as a continuity of symptomatology may establish the second and third elements of service connection. The Veteran's contentions during this appeal have not established such continuity of symptomatology. The Veteran has not affirmatively established that the onset of his bilateral hearing loss was in service and that it continued since service. He testified at both hearings about having a feeling like his ears were clogged in service, but that the feeling would go away. His contentions have not established that the onset of his current bilateral hearing loss disability occurred in service. At the May 2005 hearing, he testified about having problems with hearing loss since the 1980s, over one decade after his discharge from service in 1967. Furthermore, the VA examiner's opinion shows that the Veteran's hearing acuity was within normal limits at discharge from service with no significant worsening compared to an examination at time of entry. Such opinion weighs against a finding that the onset of a bilateral hearing loss disability began in service with continuing symptoms thereafter. There is no competent medical or lay evidence that bilateral hearing loss was manifest to a degree of 10 percent or more within one year of the Veteran's discharge from service. The evidence of record does not contain any etiological opinion relating the Veteran's current bilateral hearing loss to his in-service acoustic trauma. Without competent evidence of an association between current bilateral hearing loss and his active duty, service connection for bilateral hearing loss is not warranted. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. As such, his own assertions as to etiology have no probative value. Without evidence of the onset of bilateral hearing loss in service or competent evidence of an association between bilateral hearing loss and the Veteran's active duty, service connection for bilateral hearing loss is not warranted. The preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss and the benefit-of-the-doubt rule does not apply. Service connection for bilateral hearing loss is denied. See 38 U.S.C.A §5107. 2. Lung Disorder, to include Emphysema and COPD The Veteran contends that the onset of a lung disorder occurred during his military service and is related to in-service bronchitis. See, e.g., T. at 5-8. He also contends that a lung disorder is related to smoking that began in service. See, e.g., June 2006 statement. The Veteran's January 1964 entrance examination showed clinically normal lungs and chest; chest X-rays were negative. In his report of medical history, he denied symptoms such as asthma; shortness of breath; chronic cough; and pain or pressure in chest. The Veteran was treated for one instance of bronchitis in March 1964. His January 1967 discharge examination again showed clinically normal lungs and chest; chest X-rays were negative. In his report of medical history, the Veteran again denied symptoms such as asthma; shortness of breath; chronic cough; and pain or pressure in chest. The Veteran's STRs do not show that he had bronchitis more than once; there is also no indication that he was treated for, or diagnosed with, a lung disorder such as emphysema and COPD. Post-service medical records show that the earliest indication of a lung disorder is in July 2004. At that time, the Veteran was diagnosed with questionable COPD. He reported that he smoked for 35 years and quit 15 years ago. Towards the end, he was up to four packs a day. In October 2004, he was diagnosed with emphysema. A record in August 2005 showing a diagnosis of emphysema also revealed the Veteran's smoking history of being a former heavy smoker, quitting after about 20 years of smoking in 1986. At his May 2007 hearing, the Veteran testified that he began smoking in service. H.T. at 1. He also testified that his doctors agreed that his emphysema and COPD were related to his smoking history. Id. at 2. A November 2007 letter from J.B., M.D. indicates that the Veteran reported having episodes of recurrent bronchitis in service. It was Dr. J.B.'s suspicion that the Veteran did have some degree of COPD at that time, which presented as recurrent bronchitis. He did smoke a number of years between then and now, and Dr. J.B. was sure that that exacerbated the condition. However, specifically, Dr. J.B. did believe that current medical problems were chronic and could be directly related to his recurrent bronchitis when he was in service. A treatment record in February 2008 shows a diagnosis of chronic bronchitis in addition to COPD. A May 2011 letter from B.S, M.D. shows that the Veteran had a history of recurrent bronchitis when he was in the military. Dr. B.S. indicated that "the interesting thing about recurrent and chronic bronchitis is that this is a diagnosis that is actually starting to fall out of favor. We are realizing that more than likely those patients are really having symptoms of early COPD. It is more likely that what [the Veteran] was suffering from in the military was very early COPD." Dr. B.S. further noted that lung function peaks around age 20 and progressively worsens. Smoking probably expedited his COPD. At his February 2012 hearing, the Veteran testified having recurrent symptoms of bronchitis in service following the March 1964 diagnosis. T. at 3-4. He testified that he did not seek treatment after the first time as bronchitis was a viral infection and what was done for that was to just wait it out. Id. at 5. He testified that he did not report bronchitis at discharge because the questions never arose and he was not having those symptoms at that time. Id. at 6. He also testified about having a current diagnosis of chronic bronchitis. Id. at 7. Dr. B.S. submitted an additional opinion in March 2012. He noted the Veteran's episode of bronchitis in service and that the Veteran then had several more incidences of shortness of breath consistent with bronchitis or COPD. During those episodes, the Veteran did not seek medical attention. It was more likely than not that that was related to his chronic COPD. More likely than not it was early exacerbations of COPD. The Veteran was afforded a VA examination in August 2012. He was diagnosed with COPD and acute bronchitis. The examiner noted that the Veteran was treated for acute bronchitis in 1964 during active duty. He reported several other episodes of viral respiratory illness associated with shortness of breath during active duty for which he did not seek medical attention. He reported being diagnosed with COPD in the mid-1990s. He was a tobacco user from 1964 to 1989 with his documentation in medical record noting one to four packs per day smoking for 35 years. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The opinion was based on a careful review of the private medical record submitted as well as personal interview with the Veteran, with particular attention to the letters from Dr. B.S. as well as Dr. J.B. Dr. B.S. noted in his letter of May 2011 that the Veteran had recurrent and chronic bronchitis during active duty. The active duty medical record did not support that and the Veteran had no respiratory complaints at military discharge. In his November 2007 letter, Dr. J.B. also stated that the Veteran had episodes of recurrent bronchitis during active duty and that statement was without question not supported by the active duty medical record. No detailed rationale was provided as to why the Veteran had early COPD. The Veteran had documentation of one episode of acute bronchitis during active duty. He had a separation physical in 1967, which clearly showed normal X-rays and was silent for respiratory complaints. He verbally reported that he was diagnosed with COPD in the 1990s. The medical records submitted document on a July 2004 visit that the Veteran had questionable COPD at that date and that he was a smoker for 35 years with habit of one to four packs per day prior to his quitting in 1989. Per the Veteran's interview, the initial diagnosis of COPD would be well over 20 years from his military discharge when he reported he started being prescribed an inhaler. There were no medical records submitted prior to 2004 to document a diagnosis of COPD prior to 2004, at which time it was documented to be mild. It was very clear that the Veteran's lung status declined significantly after 2004 and was further complicated by cricoid spasm and laryngopharalgeal reflux in 2005. One documented acute episode of bronchitis in the 1960s would not be consistent with a diagnosis of COPD at that time. Medical evidence in active duty record does not support a diagnosis of COPD in 1967. Current medical evidence accepts that COPD is a chronically progressive disease that takes years to develop. The Veteran's current COPD was most likely related to his 35 years of tobacco abuse with documentation of up to four packs per day per note of July 2004. An episode of acute bronchitis can occur in any individual irrespective of the presence or absence of other underlying respiratory conditions. The medical record was silent from 1968 to 2004 for any follow-up or treatment for COPD, which would be expected. Per Pub Med Health, smoking is the leading cause of COPD. Based on a review of the evidence, the Board concludes that service connection for a lung disorder, to include emphysema and COPD, is not warranted. Although the evidence shows bronchitis in service and a current diagnosis of a lung disorder, the evidence does not support a finding of a nexus between a lung disorder and his military service. The Board acknowledges the positive opinions from Drs. J.B. and B.S. indicating that the Veteran's COPD had its onset in service. However, the Board finds these opinions less probative than the August 2012 VA examiner's opinion. The positive opinions all indicate that the Veteran reported recurrent bronchitis in service. While the Veteran is competent to report having recurrent symptomatology that was the same as that experienced at the time of the bronchitis diagnosis in 1964, the contemporaneous evidence of record outweighs his credibility. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. The Veteran's January 1967 discharge examination showed clinically normal lungs and chest, negative chest X-rays, and a denial of respiratory symptomatology. Although the Veteran reported in-service symptomatology he attributed to recurrent bronchitis, even after taking into account the Veteran's statements, the VA examiner opined that the active duty medical record did not support recurrent bronchitis. Considering the VA examiner's opinion, as well as the contemporaneous service records as opposed to the Veteran's unsupported assertions of events now over three decades past, the Board concludes that the evidence does not support a finding of recurrent bronchitis in service. As such, the private opinions, premised upon a report of recurrent bronchitis not supported by the evidence of record, and as they did not address the Veteran's normal lungs, chest and chest X-rays at discharge, render them less probative than the VA examiner's opinion. See 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). Even if the Veteran did have recurrent bronchitis in service, the evidence does not support a finding that a current lung disorder is related to such. The August 2012 VA examiner opined that current medical evidence accepts that COPD is a chronically progressive disease that takes years to develop. The VA examiner further opined that follow-up or treatment for COPD from 1968 to 2004 would be expected. Neither private physician addressed those points. Although the VA examiner reported that the Veteran was prescribed medication for COPD in the 1990s, that is still over two decades after he was discharged from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The probative evidence of record fails to establish that the onset of any current lung disorder began in service or is related to the Veteran's in-service bronchitis. As for the Veteran's May 2007 testimony and the VA examiner's opinion that the COPD is related to smoking, for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (2012). The Veteran's claim was filed in April 2006. Therefore, even though the Veteran testified that his smoking began in service and the evidence suggests that his COPD is due to smoking, service connection for a lung disorder, to include emphysema and COPD, on this basis is precluded by law. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of a lung disorder, to include emphysema and COPD, falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. As such, his own assertions as to etiology have no probative value. Without competent and probative evidence of the onset of a lung disorder, to include emphysema and COPD, in service or competent evidence of an association between a lung disorder, to include emphysema and COPD, and the Veteran's active duty, service connection for a lung disorder, to include emphysema and COPD, is not warranted. The preponderance of the evidence is against the Veteran's claim for service connection for a lung disorder, to include emphysema and COPD, and the benefit-of-the-doubt rule does not apply. Service connection for a lung disorder, to include emphysema and COPD, is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a lung disorder, to include emphysema and COPD, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs