Citation Nr: 1328719 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 13-06 455 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure in service. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to September 1955 and from July 1956 to July 1960. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the RO. In June 2013, the Veteran testified at the RO by way of videoconference technology at a hearing held before the undersigned Veterans Law Judge. The transcript of the hearing is associated with the electronic casefile. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3). In light of Brokowski and Clemons, and considering that the Veteran has various diagnoses of respiratory illnesses on record, the Board has recharacterized the respiratory disorder claim as indicated on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are primarily duplicative of the evidence of record, but it also contains the Board hearing transcript, which is pertinent to the present appeal. 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 service connection for a respiratory disorder, to include as secondary to asbestos exposure in service is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's lay assertions of having in-service exposure to hazardous noise levels are consistent with his duties during service and are credible for the purpose of establishing the presence of hearing problems beginning in service. 2. The currently demonstrated bilateral mixed hearing loss is shown as likely as not to have its clinical onset after the Veteran's exposure to harmful noise levels while carrying out his duties as a boilerman in service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral mixed hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of compliance with VA's duty to notify and assist is not required at this time. Law & Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include sensorineural hearing loss (organic disease of the nervous system), a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b) , 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his current bilateral mixed hearing loss is due to exposure to hazardous noise levels in service. Specifically, he reports serving on naval vessels, destroyers in particular, as a boilerman in the Navy for eight years when his primary responsibilities took place inside the boiler room where he was subjected to constant loud noise from the boiler room fan and machinery. A review of the Veteran's service personnel records shows that his military occupation specialties included boilermate, working in a boiler room on various naval vessels. The Veteran also testified as to his noise exposure during the course of carrying out his in-service duties. As the claimed noise exposure is consistent with the duties involved in boiler room maintenance, in-service noise exposure is acknowledged. 38 U.S.C.A. § 1154(a). In regard to the claimed hearing loss, the record reflects that the Veteran does have a current bilateral hearing disability, as defined under 38 C.F.R. § 3.385. At this juncture, the Board notes that a mixed hearing loss disability is to be distinguished from a sensorineural hearing loss disability, which is an organic disease of the nervous system, and also a chronic disease as per VA regulations. See 38 C.F.R. §§ 3.303(b) , 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regardless, the pertinent evidence of record establishes that hearing loss was incurred in service, as it will be discussed infra. See 38 C.F.R. § 3.303(d). The service treatment records, to include the enlistment examinations in January 1952 and July 1956 showed normal findings for the ears and drums, and reveal no complaints of hearing problems during service. There was nothing indicated for the audiometer results. The whispered voice test results were 15/15. Upon examination in September 1955 and July 1960, the findings were normal. The whispered voice test results were 15/15 in each ear. The post-service VA treatment records note that the Veteran sought an evaluation of his ears in July 2003. The Veteran complained of progressive hearing loss for the past 40 years. It was noted that audiograms showed bilateral sensorineural hearing loss. In April 2011, the Veteran underwent a VA audiology examination where pure tone testing revealed mixed hearing loss in both ears. Based on a speculative VA opinion, an addendum opinion was sought in August 2011. The VA audiologist who provided the addendum opinion recommended another VA examination as she noted the discrepancy in the type of hearing loss found in the records - mixed hearing loss (diagnosed in April 2011) as opposed to sensorineural hearing loss previously diagnosed in 2003. Thus, the Veteran underwent another VA audiology examination in November 2011. After conducting the audiological testing, the November 2011 VA examiner diagnosed the Veteran with mixed ear hearing loss in both ears. She provided a negative nexus opinion stating that the Veteran's hearing loss was not likely a result of an event in service. Rather, she stated that the Veteran was 77 years old and presbycusis is a likely cause of his hearing loss. Also, she noted a slight air-bone gap that could be related to stiffness in the auditory pathways due to aging. She indicated that noise exposure often caused hearing thresholds to be worse in the 4000 Hertz frequency range and this did not appear to be the case in the present audiogram, particularly for the right ear. Although it was noted that the November 2011 examiner reviewed the claims file, there was no indication that the examiner considered the Veteran's reports of hearing loss symptomatology in service, current symptomatology, accounts of noise exposure in service, or any of his lay contentions with respect to hearing loss. The Veteran is competent to report as to the symptoms he experiences, including its onset, such as hearing difficulty. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board finds that the November 2011 VA examiner's opinion was inadequate since she did not address pertinent evidence in the reasons and bases supporting her opinion. The Board recognizes that a medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that, in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the Court held that hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently. In fact, the law and regulations do not specifically require complaints of, or treatment for, hearing loss during service in order to establish service connection. Id. Thus, the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board also notes that a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The Veteran is competent to describe symptoms of an injury or illness, such as loss of hearing, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As stated, it is within the scope of the Veteran's competency for him to describe diminishing hearing capacity during service and thereafter. The Board finds the Veteran's assertion of hearing loss beginning in service to be credible. The Board also does not dispute that the Veteran had exposure to hazardous noise levels in service. The Veteran's descriptions of noise exposure are consistent with his military occupational specialty of boilermate. Considering the totality of the evidence, including the Veteran's credible assertions of diminished hearing since service, the Board finds the evidence to be in relative equipoise in showing that his hearing loss as likely as not had its clinical onset during service. In resolving reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a bilateral hearing loss disability is granted. REMAND The Board finds that further development is necessary in order to properly decide the merits of the respiratory disorder claim. Such development includes affording the Veteran a new VA examination to assess the nature and etiology of his claimed respiratory disorder(s). See 38 U.S.C.A. § 5103A(d). Pursuant to VA's duty to assist, VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran asserts that his current respiratory disorder had its onset during service or is an asbestos-related disease process secondary to asbestos exposure therein. Specifically, the Veteran states that he was exposed to asbestos aboard several naval ships as it was the main insulation of the ships and his in-service duties involved extensive contact with asbestos dust, particularly inside the boiler rooms where he spent the majority of his time. That extensive exposure, along with exposure to other environmental hazards, are claimed to be the causes of the Veteran's lung scarring and present respiratory disorder. VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual and Manual Rewrite. See Adjudication Manual, M21-1, part VI, para. 7.21 (October 3, 1997); Manual Rewrite, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006); see also VAOPGCPREC 4-00 (April 13, 2000). The guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. Also of significance is that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there was a relationship between asbestos exposure and the claimed disease. See M21-1, Part IV.ii.2.C.9.h; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In this case, the Veteran's post service treatment records reflect a long-standing history of respiratory illnesses, to include diagnoses of Chronic Obstructive Pulmonary Disease (COPD) and interstitial lung disease. Additionally, in support of his claim, the Veteran submitted an April 2011 private treatment record from Dr. H.Y. who explained the results of the Veteran's chest X-ray studies. Dr. H.Y. found evidence of some scarring in the right lower lobe and new small left pleural effusion in the left lower lobe. He indicated that there were also calcified pleural plaques compatible with asbestos exposure. Furthermore, it is not apparent that any examiner considered the Veteran's service treatment record dated August 1958 where a service medical professional described the Veteran having "pleurisy-like pain" located in the right lower anterior chest. The Veteran was afforded a VA examination for his respiratory condition in April 2011. However, the VA examiner's opinion was based on current findings that did not include Dr. H.Y.'s findings made several days later of calcified pleural plaques (upon conducting additional chest X-ray studies). The record is devoid of a complete and adequate medical opinion sufficiently linking any current diagnosis or finding to the Veteran's service. Therefore, additional development should be undertaken to verify whether the Veteran was exposed to asbestos in service. In any event, in consideration of the Veteran's assertions and the different theories of entitlement for service connection, Veteran should be afforded an examination to determine whether he has an asbestos-related disease related to exposure during eight years of active service. Lastly, the Board notes that the Veteran submitted evidence in May 2013 without a waiver of initial RO review. It appears that the Veteran only waived evidence to be submitted during his hearing. The newly submitted evidence, including an article on pleural disease, does not appear to have had prior RO review. There is no prejudice to the Veteran at this time considering that the Board has mandated additional evidentiary development in his case. The RO will be directed to consider any additional evidence that was associated with the file since the last Statement of the Case and issue a Supplemental Statement of the Case after all indicated development is completed. Accordingly, this remaining matter 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. The RO should attempt to verify the Veteran's claimed in-service asbestos exposure. All efforts to obtain these records should be fully documented, and the RO should request a negative response if records are not available. 2. The RO then should have the Veteran scheduled for a VA examination to ascertain the current nature and etiology of any and all identified current respiratory disorder(s) to determine whether he has a current respiratory disorder or an asbestos-related disease, related to an event in service or asbestos exposure in service. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, to include X-ray studies relevant to claims involving asbestos exposure (e.g., B-reader). In the event that in-service asbestos exposure cannot be confirmed, the examiner is still requested to determine whether the Veteran has a current respiratory or pulmonary disorder that at least as likely as not is due to another event or incident of his service. The examiner is directed to consider and comment on the relationship, if any, between any current respiratory diagnosis and the notation of "pleurisy-like pain" located in the right lower anterior chest that was observed in service in August 1958, The examiner is also requested to review all pertinent records associated with the claims file and to provide a medical opinion, with supporting rationale, as to the following: Whether it is more likely than not, less likely than not, or at least as likely as not, that any current respiratory disability, to include any asbestos-related disease, is/are related to his period of active service to include exposure to asbestos in service. The examiner should discuss the Veteran's service history as well as his post-service evidence, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Ultimately, it is requested that the examiner determine the correct diagnosis(es) and determine whether there is a relationship to any in-service event, to include claimed asbestos exposure.) After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 3. After completing all indicated development requested, the RO should readjudicated the claim remaining on appeal in light of all the evidence of record, to include the evidence submitted in May 2013. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and they afforded a reasonable opportunity for response Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs