Citation Nr: 1325807 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-35 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to service-connected asbestosis. 2. Entitlement to service connection for service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to November 1957. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, claims of service connection for bilateral hearing loss and COPD. The Veteran submitted a Notice of Disagreement in February 2009; a statement of the case was issued in August 2010; and a VA Form 9 was submitted in August 2010. In February 2013, the Veteran provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Additional, pertinent evidence pertaining to the Veteran's COPD claim was received in March 2013; this evidence was submitted without a waiver of initial RO consideration. However, as the Board is granting the claim of service for COPD herein, the Veteran is not prejudiced by the lack of RO review. The Veteran's Virtual VA records were also reviewed and considered in preparing this remand. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent medical evidence of record reflects that the Veteran's COPD has been aggravated by his service-connected asbestosis. CONCLUSION OF LAW Service connection is warranted for the Veteran's COPD. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for the Veteran's COPD. Therefore, no further discussion of the VCAA is required with respect to this claim as any deficiency has been rendered moot. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). 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. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As detailed below, the Veteran has contended, in part, that his COPD is secondary to his service-connected asbestosis. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service- connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Allen v. Brown , 7 Vet. App. 439. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. See Allen, 7 Vet. App. at 447-449. The Veteran's claim for COPD was received in March 2008, and therefore, the amended provision applies here. Analysis In the instant case, and for the reasons stated below, the Board finds that the service connection is warranted for the Veteran's COPD on a secondary basis. The Veteran essentially contends his service-connected asbestosis caused or aggravated his COPD. The Board notes that service connection for asbestosis was granted in an August 2010 rating decision; this grant was based on the Veteran's exposure to asbestos while serving aboard ships in the Navy. Because the Veteran's claim is being granted herein on a secondary basis, the Board will forgo a complete discussion as to direct service connection, but briefly notes that the available service treatment records do not reflect that the Veteran was actually diagnosed with COPD or any other chronic respiratory disability, while on active duty. The Veteran does not contend otherwise. Following service, medical evidence shows that the Veteran was diagnosed with pulmonary asbestosis in approximately 1998. It appears that COPD was formally diagnosed some two years later, in 2000. See, e.g., May 2005 Treatment Note, Dr. R. Private medical records, including a May 2008 private treatment record, suggest that the Veteran has experienced exacerbations of COPD due to the symptoms associated with his service-connected asbestosis. See, e.g., May 2008 Memorial Health System Progress Notes. Following his February 2013 Board hearing, the Veteran submitted three positive "nexus" statements, relating the COPD to asbestosis. The first statement, provided by A.F., (noted as his "treating physician"), indicated that COPD was more likely than not aggravated or due to his service-connected asbestosis. He reasoned that the asbestosis was making the COPD "worse." The second statement, provided by K.M. (PA-C), likewise indicated that the Veteran's COPD was more likely than not aggravated or due to his service-connected asbestosis. K.M. stated that the Veteran was on various medications and oxygen dependent due to his COPD, but did not provide a rationale. The third statement was provided by Dr. A.B., the Veteran's long-time treating pulmonologist (since 2001). Dr. A.B. also opined that the Veteran's COPD was more likely than not aggravated or due to service-connected asbestosis. He essentially reasoned that the Veteran's pleural thickening and calcifications (i.e., residuals of his asbestos exposure and asbestosis) cause a restrictive process which increase his COPD symptoms. With respect to baseline levels, Dr. A.B. stated that the Veteran's oxygen dependency would be less or non-existent but for the co-existing restrictive process (i.e., pleural thickening/calcification resulting from asbestosis). The Board finds Dr. A.B.'s opinion to be particularly probative and persuasive as to the issue of aggravation since he is the Veteran's long-time treating pulmonary physician and is likely most familiar with the Veteran's pulmonary medical history. In addition, the opinion was accompanied by a well-supported rationale and is not otherwise contradicted by any other medical evidence of record. Taken as a whole, the competent medical opinions of record that have evaluated the issue of secondary aggravation in this case have all concluded that the Veteran's COPD is, at the very least, aggravated his service-connected asbestosis. No competent medical opinion is of record which specifically refutes this contention based on the facts of this case. Moreover, Dr. A.B. expressly noted that, in the absence of the restrictive lung process (i.e., asbestosis), the Veteran would likely not be dependent (or as dependent) on oxygen. The Board finds that this statement adequately addresses the issue of baseline aggravation. See Allen, supra. In reaching the above conclusion, the Board acknowledges that there are conflicting opinions of record as to direct service connection. See, e.g., August 2008 VA Examination, and May 2009 Statement from J.M, PA-C. However, since the grant of service connection for asbestosis in August 2010, it has been the Veteran's primary contention that his COPD is secondary to such disability. See Hearing Transcript. Given the Veteran's statements, and further considering the undisputed positive aggravation opinions outlined above, the Board finds the most appropriate theory of entitlement for service in this case is on a secondary, not direct basis. Thus, no further consideration as to direct service connection is necessary here. Lastly, the Board notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court stated that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b) , an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that he is entitled to service connection for his COPD on the basis of secondary aggravation. ORDER Entitlement to service connection for COPD as secondary to asbestosis is granted. REMAND The Veteran contends his bilateral hearing loss is related to acoustic trauma sustained during service. During his hearing before the undersigned, he described his duties as a coxswain and a "gun talker" aboard a destroyer ship which required the use of a microphone and earphones and exposure to weapons firing on the deck without ear protection. He also testified as to additional noise exposure when working in the shipyards (i.e., sandblasting, chipping paint, etc.). The Veteran reported that he was treated at sick bay with ear drops. Following service, he reported that he was employed as an electrician and millwright, but was afforded earplugs/earmuffs. The Board briefly notes that the Veteran's service treatment records are silent as to complaints, treatment, or diagnoses relating to hearing loss or ear problems. Enlistment and separation examinations reflect 15/15 whispered voice testing. Following service, the Veteran reported that he was fit for hearing aids in 1995. In August 2008, the Veteran underwent a VA audiological examination. The August 2008 examination report indicated that right and left ear hearing was "normal" to 1000 Hz, with moderate sloping to a profound sensorineural hearing loss. Notably, however, the report does not contain any audiometric findings, pure tone threshold, or speech recognition results. These findings would be relevant in determining whether the Veteran has a currently impaired hearing for VA purposes. See 38 C.F.R. § 3.385. In any event, as the claims file was not available for review at that time, an addendum opinion was obtained in December 2008. The December 2008 examiner opined that the Veteran's bilateral ear hearing loss was more likely the result of civilian noise exposure. He based this opinion largely upon the Veteran's normal whispered voice tests at enlistment and discharge. The Director of the VA Compensation and Pension Service has stated that whispered voice tests "cannot be considered as reliable evidence that hearing loss did or did not occur. Whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." See VBA Training Letter 211D (10-02), dated March 18, 2010. Moreover, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). As such, the Board finds that the rationale of the December 2008 VA opinion, which relies primarily on the existence of normal whispered voice test results at separation, is inadequate. Accordingly, the Veteran should be afforded a new VA audiological examination to determine whether his currently diagnosed bilateral hearing loss is related to military service. Accordingly, the case is REMANDED for the following action: (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. Contact the Veteran and provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his claimed bilateral hearing loss since his separation from service. Thereafter, the RO must request all of the Veteran's VA treatment records. The RO should also associate with the claims file a complete copy of the August 2008 VA audiological examination report, to include all audiological/pure tone findings and speech recognition scores. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Thereafter, schedule the Veteran for a VA audiological examination to ascertain the etiology of any hearing loss found. The claims file must be provided to and reviewed by the examiner. All tests or studies (to include an audiogram) necessary to make this determination must be ordered. The examiner must obtain a detailed history of in-service and post-service noise exposure. Based upon review of the service and post-service medical records, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss began during active service, is related to any incident of service, or began within one year after discharge from active service. In addressing this question, the examiner must specifically consider the Veteran's reported exposure to acoustic trauma aboard a destroyer ship and in his capacity as a coxswain and gun talker without the use of ear protection, as well as reported post-service occupational noise exposure with the use of ear protection. The examiner is reminded that VA laws and regulations do not preclude service connection for post-service hearing loss where hearing was within normal limits at the time of separation from service. See Hensley, supra. The examiner is also reminded that whispered voice tests cannot be considered as reliable evidence that hearing loss did or did not occur. See VBA Training Letter 211D (10-02), dated March 18, 2010. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale for all opinions must be provided. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs