Citation Nr: 1753110 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-33 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to a compensable disability rating for bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from December 1960 to December 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2011 and June 2013 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed, including the transcript of the July 2016 Board hearing presided over by the undersigned Veterans Law Judge. In September 2016, the Board remanded the case for further development, and the case is again before the Board for further appellate proceedings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). In a December 2016 rating decision, the RO denied entitlement to service connection for a psychiatric disorder, and the Veteran submitted a timely notice of disagreement against this determination. The record indicates that the RO has acknowledged receipt of the Veteran's notice of disagreement and this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999) (where a notice of disagreement had not been recognized). As the record reflects that the notice of disagreement has been recognized and that additional action is pending, a remand of the issue pursuant to Manlincon is not warranted with regard to this issue. FINDINGS OF FACT 1. The Veteran does not currently have a respiratory disorder that is etiologically related to in-service asbestos exposure, and he has not had any such disability during the pendency of the claim; and, the Veteran's current respiratory disorders are not etiologically related to service. 2. During the entire period on appeal, the Veteran's measured hearing loss was not shown to be worse than Level II for the right ear and Level II for the left ear. CONCLUSIONS OF LAW 1. A respiratory disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. For the entire appeal period, the criteria for a compensable disability rating for the service-connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Compliance with Prior Remand In September 2016, the Board remanded the case and directed the AOJ to take any appropriate measures to determine whether or not the Veteran's ship, the U.S.S. Little Rock, had asbestos dust in the ship's living quarters during the Veteran's period of service on the ship. The AOJ did so and found that the Veteran was exposed to asbestos in service. The Board also directed the AOJ to contact the Veteran and request information and releases for any outstanding private treatment relevant to his respiratory disability and bilateral hearing loss. The AOJ did so by letter, the Veteran submitted private treatment records. (He also noted in an October 2017 Report of General Information that the releases he did send are for unrelated claims and that he had no further evidence to submit with regard to his claims on appeal.) No further action was required of VA as to this directive. The Board also directed the AOJ to obtain updated VA treatment records, and the AOJ did so. The Board also directed the AOJ to obtain a VA medical opinion to determine the nature and etiology of the Veteran's respiratory disorders, and the AOJ did so in March 2017 and December 2017, and the examiner provided the requested information. The Board also directed the AOJ to obtain updated VA treatment records, and the AOJ did so. The Board also directed the AOJ to afford the Veteran with a VA examination to determine the severity of the Veteran's bilateral hearing loss disability, and the AOJ did so in March 2017, and the examiner provided the requested information. The claims were then readjudicated in a supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or injury incurred in the line of duty or for aggravation of a preexisting disease or injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish entitlement to service connection, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a respiratory disability that is related to reported exposure to asbestos and dust in service. The AOJ has conceded exposure to asbestos in service. See August 2017 Formal Finding. The Veteran is competent to report dust exposure, and the Board finds such report is credible. The Veteran has also testified at the Board hearing that he noticed having breathing problems not long after he got discharged. The Veteran is competent to report his symptomatology and history of symptomatology, to include a long history of difficulty breathing. Further, the Board finds that such reports as to symptoms are credible. However, the Board finds that the diagnosis of respiratory symptoms, the identification and diagnosis of asbestos-related respiratory disorders, as well as the determination as to the etiology of respiratory disorders essentially medical questions, and as such it is beyond its own competence to evaluate based upon its own knowledge and expertise. The record does not indicate that the Veteran has medical expertise or training. It follows that the Veteran's determination that he has a respiratory disorder that is related to his in-service asbestos exposure is also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, such lay opinion by the Veteran has no probative value. Here, the preponderance of the evidence is against finding that the Veteran has a respiratory disorder that is etiologically related to service, to include as due to his exposure to asbestos and dust in service. Dr. K.'s March 2017 and December 2017 VA medical opinions have high probative value, as Dr. K. is a physician with the requisite medical training and expertise to provide an opinion as to the nature and etiology of the Veteran's respiratory disorders. He also rendered his diagnoses and opinions after examination and clinical testing of the Veteran in March 2017, and after review of the Veteran's claims file and medical history, and on the Veteran's subjective history. Dr. K. also considered the medical evidence of record, to include the below-discussed conflicting medical evidence from Dr. R. L. and Dr. S. P. Dr. K. provided clinical rationale to support his opinions and his interpretations of the Veteran's clinical testing results, and he covered all relevant bases. Dr. K. examined the Veteran in March 2017 and reviewed the Veteran's claims file. He also provided an addendum opinion in December 2017 after the Veteran's in-service exposure to asbestos was conceded. In the March 2017 VA examination report, Dr. K. noted the Veteran's history of symptoms and smoking history. He performed clinical testing, including a chest x-ray and pulmonary function testing, and he diagnosed the Veteran with COPD from smoking and allergic asthma. Dr. K. acknowledged Dr. R. L.'s report (discussed in detail below), and that Dr. R. L. opined that he has both asbestosis and silicosis. Dr. K. stated that these two conditions occur in different regions of the lung and bring his interpretation of the chest radiograph into question for several reasons: "First of all, Dr. L. is a notorious "B-reader" who has provided over 13,000 reports of "asbestosis" which have been mischaracterized and he has made statements retracting his ability to diagnose asbestosis based upon a chest radiograph alone." Dr. K. referenced an NPR news story "Lawyers Seek Dismissal of Asbestos Lawsuits" to support this statement. Dr. K. then stated: "Second, and more importantly, Dr. L.'s findings are not confirmed on the VA chest radiographs obtained and interpreted by reputable radiologist, Dr. S. Third, even Dr. L.'s report of "asbestosis" is not supported by the findings of pleural thickening or pleural plaques, both of which would be expected to be found if there was significant asbestos exposure." Dr. K. also noted that there is insufficient evidence on pulmonary function testing (normal diffusion capacity) and there are alternative explanations for his subjective dyspnea (COPD, asthma, and paralyzed hemidiaphragm). Dr. K. then provided a December 2017 addendum opinion, in which he expressly notes that he read the report by Dr. S. P., which is discussed below. Dr. K. opined that the Veteran's current respiratory disorders are not related to service and are not related to exposure to asbestos or dust in service. Dr. K. stated that the Veteran has not had a diagnosis of asbestosis, silicosis, or any other pulmonary diagnoses at any point during the appeal period that was incurred in service or caused by the Veteran's asbestos exposure in service. Dr. K. stated that the Veteran is a former smoker of 30 years and he has shortness of breath from COPD and an elevated hemidiaphragm. Dr. K. stated that the hemidiaphragm is not related to service, as the cause of his hemidiaphragm is unknown and it was not present and not diagnosed in service. Dr. K. then stated that the Veteran's asthma is not related to service. He stated that asthma is not caused by exposure to dust. Dr. K. also noted that the Veteran has not had any respiratory disorder that resolved during the appeal period. He stated that that asbestos-related and silica-related lung disease cause scarring, and that this does not resolve over time. He stated that neither asbestosis nor silicosis is present on the Veteran's chest imaging. Dr. K. noted again that there are no fibrotic changes or pleural plaques on the chest radiographs, and he stated that the pulmonary function testing shows reactive airways (asthma) and chronic obstructive pulmonary disease (COPD) from cigarette smoking history. He stated that the lung volumes are decreased due to an elevated hemidiaphragm. Dr. K. stated that this disability is not caused by asbestos exposure, silica exposure, or any other in-service event or occurrence. Further, Dr. K.'s VA opinion is supported by the VA treatment records from the Veteran's treating providers. The VA treatment records show that the Veteran was diagnosed with COPD and is being treated for the same. There is no indication that the Veteran was diagnosed or treated for an asbestos-related respiratory disorder by his VA providers. The Veteran and his wife also testified at the Board hearing that his VA providers have diagnosed him with COPD. The Board acknowledges that the Veteran submitted a January 2003 private treatment record from Dr. R. L., who noted that his medical practice is limited to radiology, and Dr. R. L. noted chest x-ray findings. Dr. R. L. stated that "no mass is observed within the lungs. There is a definite bilateral irregular and rounded interstitial markings delineated diagnosis of interstitial fibrosis. These findings are typical of previous occupational exposure to silica dust and asbestos dust. No pleural plaque, pleural thickening or hemidiaphragmatic plaque is observed." Dr. R. L. stated that the Veteran has interstitial fibrosis typical of previous occupational exposure to silica dust and asbestos dust and stated that the chest x-ray is diagnostic of asbestosis and silicosis. However, this diagnosis has little probative value. This diagnosis was rendered based only on an x-ray, without any other testing such as pulmonary testing. For this reason, and for the significant reasons explained by Dr. K. above, Dr. R. L.'s assessment of asbestosis and silicosis is outweighed by Dr. K.'s VA opinion. The Veteran also submitted a June 2009 private medical opinion from Dr. S. P., who provided a single independent medical evaluation for occupational lung disease for the Veteran's then-attorneys in a non-VA related lawsuit to which the Veteran testified at the Board hearing as being unrelated to service. The Veteran reported his occupational history and exposure to asbestos dust at work. The Veteran also noted his 40 year history of smoking. Dr. S. P. noted that the Veteran has mild crackles at both bases on physical examination, and Dr. S. P. noted the Veteran's pulmonary function study results. Dr. S. P. also noted that the chest radiograph performed in April 2009 showed "irregular small opacities at both mid lungs and both bases." Dr. S. P. then concluded that the Veteran has asbestosis and stated this conclusion is based on the Veteran's history of exposure to asbestos, the Veteran's current symptoms, findings on physical examination, and findings on the Veteran's pulmonary function testing and chest radiograph. However, it does not appear that Dr. S. P. reviewed the Veteran's claims file or attempted to reconcile the Veteran's pulmonary testing results with his 40 year history of smoking, nor did Dr. S. P. provide clinical rationale as to why the Veteran's chest radiograph showed asbestosis, particularly given the lack of pleural plaques or pleural thickening shown. Dr. S. P.'s report does not provide any explanation why the Veteran's chest radiograph and pulmonary function tests show asbestosis, as opposed to other respiratory disorders such as COPD or asthma, for which the Veteran has been diagnosed and regularly treated. In all, Dr. S. P. assessment is conclusory and provides no clinical rationale to support the opinion. For these reasons, Dr. S. P.'s opinion that the Veteran has asbestosis has little probative value and is outweighed by Dr. K.'s VA opinions. On review, and in light of Dr. K.'s March 2017 and December 2017 VA medical opinions, the preponderance of the evidence is against a finding that the Veteran has had an asbestos-related respiratory disorder at the time the claim was filed or at any time during the pendency of the claim on appeal. In light of Dr. K.'s VA opinions, the preponderance of the evidence is against a finding that the Veteran's current respiratory disabilities of COPD and asthma are etiologically related to exposure to asbestos in service. Further, in light of Dr. K.'s VA opinions, the preponderance of the evidence is against a finding that the Veteran's respiratory disorders are etiologically related to exposure to dust in service. There is no indication in the medical evidence of record, and no argument by the Veteran, that his COPD and asthma are otherwise related to service. Though the Veteran has competently and credibly reported a long history of breathing problems since service, Dr. K.'s VA opinions outweighs the Veteran's contention that his breathing problems continued since service due to reasons other than smoking. Indeed, in light of Dr. K.'s VA opinions, the Veteran's symptoms were due to smoking, and also later due to elevated hemidiaphragm, which Dr. K. stated is not related to service or shown in service. Direct service connection for any disability due to cigarette smoking is not available as a matter of law. 38 U.S.C.A. § 1103 ; 38 C.F.R. § 3.300. For these reasons, service connection for the Veteran's current respiratory disorders is not warranted. On review, the preponderance of the evidence is against a finding that the Veteran's current respiratory disorders are etiologically related to service. For these reasons, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder. Therefore, the benefit of the doubt provision does not apply, and the claim on appeal must be denied. See 38 U.S.C.A. § 5107. Bilateral Hearing Loss The Veteran's service-connected bilateral hearing loss disability is currently evaluated as noncompensable for the entire appeal period under Diagnostic Code (DC) 6100 (hearing impairment). The Veteran contends that this evaluation does not accurately depict the severity of his bilateral hearing loss and that his hearing loss has gotten worse. DC 6100 contemplates the Veteran's diagnosis and symptoms of hearing impairment, and thus the Veteran is appropriately rated under DC 6100. No other codes are for application. Evaluations of hearing loss must be conducted by a state-licensed audiologist and are based upon organic impairment of hearing acuity as measured by the results of a Maryland CNC speech discrimination test, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 hertz. 38 C.F.R. § 4.85(a) and (d). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, DC 6100. The assignment of disability ratings for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometric testing results are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designation of impaired efficiency (I through XI) will be determined for each ear by applying the appropriate table as required by 38 C.F.R. § 4.85 or § 4.86. In Table VI, the percent of discrimination resulting from the controlled speech discrimination tests, located along the vertical axis, is compared with the puretone threshold average, located along the horizontal axis. In Table VIA, only the puretone threshold average is used. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz, divided by four. 38 C.F.R. § 4.85. The numeric designations resulting from Table VI or Table VIA are then matched between the "better" ear and the "poorer" ear on Table VII to determine the Veteran's disability rating under DC 6100. 38 C.F.R. § 4.85. When there is an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a), defined as when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating will be determined pursuant to the Roman numeral designation for hearing impairment from either Table VI or Table VIA, which ever results in the higher numeral. Also, each ear will be evaluated separately in this regard. Here, 38 C.F.R. § 4.86(a) does not apply because no such exceptional pattern of hearing impairment is shown at any point during the appeal period. Also, because there is no evidence at any point during the appeal period of an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b), defined as when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating provisions under 38 C.F.R. § 4.86(b) do not apply. The Veteran is competent to report his hearing loss symptoms and observations, and the Board finds that such reports are credible. The Veteran has reported that he has difficulty with hearing, and in his October 2014 VA examination, the Veteran reported that he has to ask other people to repeat what they say a lot. The Veteran testified that he also has turned his radio and TV on loud. The Veteran's wife is also competent to report her observations of the Veteran, and the Board finds that such reports are credible. In the July 2016 Board hearing, the Veteran's wife testified that that the Veteran does not hear when she talks to him and he does not respond to her. The Board has considered these lay statements as to the subjective severity of the Veteran's bilateral hearing loss and functional impairments thereof and the Veteran's contention that his current disability rating does not accurately depict the severity of his bilateral hearing loss. However, the Board finds that the audiological testing as to the severity of bilateral hearing loss is essentially a medical matter. The record does not indicate that the Veteran has medical expertise or training in the field of audiology. Thus, his essential contention that his subjective hearing loss is objectively more severe than as reflected in the audiological testing results of record is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, the Veteran's essential lay opinions that his subjective hearing loss impairment is objectively more severe than as reflected in the audiological testing results of record, and that the audiological testing results of record do not accurately reflect the objective severity of his hearing loss, have no probative value and are outweighed by the objective audiometric testing results of record performed by the audiologists in this case. The Board acknowledges that the Veteran testified at the Board hearing that he gets dizzy once in a while. However, for the reasons discussed above, the Veteran is not competent to determine whether his symptom of dizziness is medically attributable to his hearing loss disability. There is no indication in the treatment records or in the below discussed VA examinations that the Veteran's dizziness may be medically attributable to his hearing loss disability. The Veteran reported dizziness and imbalance in the October 2014 VA audiological examination, and the provider noted that a VNG was scheduled to these reports, but there is no indication that the dizziness imbalance was noted by a medical provider as being attributable to his hearing loss disability. Indeed, in a December 2014 VA audiology note, testing was performed to evaluate the Veteran's dizziness and imbalance, and the interpretation was "VOR is suggestive of possible vestibular deficit and this is supported by right beating spontaneous nystagmus without fixation." A vestibular deficit is a deficit of the vestibulum labyrinth ossei, which is the an oval cavity in the middle of the boney labyrinth of the ear, communicating anteriority with the cochlea and posteriorly with the semicircular canaclas, and containing perilymph surrounding the cacculus and utriculus. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 2054 (32d. ed. 2012). There is no indication in the medical evidence of record, to include the VA treatment records, that the Veteran's possible deficit of this canal in the ear is medically attributable to the Veteran's sensorineural hearing loss disability, and the December 2014 VA audiology note indicates that this is a separate disability with separate treatment from the Veteran's hearing loss. For these reasons, the Board will not consider the Veteran's reported ear pain in rendering evaluations for the Veteran's bilateral hearing loss disability. In a February 2013 VA audiological examination, the audiogram that day showed the right ear puretone threshold average was 46 decibels, and the speech discrimination score was 88 percent. After applying Table VI, the right ear has a numerical designation of Level II. The left ear puretone threshold average was 46 decibels, and the speech discrimination score was 84 percent. After applying Table VI, the left ear has a numerical designation of Level II. Application of Table VII by comparing the right ear and left ear numerical designations shows that an evaluation of 0 percent is warranted. In an October 2014 VA audiological examination, the audiogram that day showed the right ear puretone threshold average was 41 decibels, and the speech discrimination score was 94 percent. After applying Table VI, the right ear has a numerical designation of Level I. The left ear puretone threshold average was 43 decibels, and the speech discrimination score was 96 percent. After applying Table VI, the left ear has a numerical designation of Level I. Application of Table VII by comparing the right ear and left ear numerical designations shows that an evaluation of 0 percent is warranted. In an March 2017 VA audiological examination, the audiogram that day showed the right ear puretone threshold average was 45 decibels, and the speech discrimination score was 92 percent. After applying Table VI, the right ear has a numerical designation of Level I. The left ear puretone threshold average was 44 decibels, and the speech discrimination score was 96 percent. After applying Table VI, the left ear has a numerical designation of Level I. Application of Table VII by comparing the right ear and left ear numerical designations shows that an evaluation of 0 percent is warranted. On review, during the appeal period, the criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated under DC 6100 for the entire appeal period. The Board concludes that the currently assigned noncompensable rating is appropriate. At no point during the appeal period have the criteria for a rating greater than that discussed above been met or approximated. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than that discussed above are warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record in conjunction with his claim for increased rating for bilateral hearing loss. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a respiratory disorder is denied. Entitlement to a compensable disability rating for bilateral hearing loss disability is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs