Citation Nr: 1800559 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-00 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for lung cancer, claimed as pulmonary disease, due to asbestos exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty with the U.S. Navy from July 1961 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the appellant was afforded a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017), 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has bilateral hearing loss as a result of active service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service. 3. The probative medical evidence of record does not reveal that the Veteran currently has or has had any diagnosis of lung cancer, or any other pulmonary disease, throughout the period of appeal. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. Tinnitus was incurred during the Veteran's active duty service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a pulmonary disease have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection The Veteran seeks service connection for bilateral hearing loss and tinnitus-both of which he contends initially manifested in service. He also seeks service connection for a pulmonary condition, which he states was caused by his exposure to asbestos during service. Generally, in order to prove 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 (2017). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As provided by 38 U.S.C. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or 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). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding the merits of any outstanding issues, VA is statutorily required to resolve any doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hearing Loss & Tinnitus The Veteran maintains that he first noticed decreased hearing acuity while on active duty; he began hearing the sound of crickets and ringing in his ears following service. His military occupational specialty (MOS) included electrical engineer and deck seaman. VA has conceded noise exposure based on his occupations during service. First, the Board finds that the audiological examination dated in April 2012 shows bilateral hearing loss and tinnitus disabilities for VA purposes. As such, the requirements of 38 C.F.R. § 3.385 are met. Thus, the question that remains before the Board is whether the Veteran's current hearing loss and tinnitus disabilities were caused or worsened by his military service. Review of his service treatment records revealed a report of medical history completed by the Veteran in June 1961, which showed normal hearing at entrance to service. An April 1961 entrance exam also showed normal ears and a 15/15 whisper test. A note on a February 1961 exam indicated the audiogram machine was inoperable. The May 1963 separation exam showed he had normal hearing. The Veteran submitted a statement in December 2011 indicating his hearing worsened due to his jobs in service and not having proper hearing protection. During the October 2017 hearing, he testified that he worked in an enclosed boat where the anchor was picked up and dropped, causing the area to be quiet loud-this lasted for over 30 days during sea trials. He did not realize how much his hearing had been affected because he did not understand what was happening. However, he noted that he experienced difficulties understanding others when there was background noise. He first noticed the onset of tinnitus as the sound of crickets and ringing in service. Again he did not understand what it was and felt that it was normal. He also noted that he worked in real estate after separation and had minimal noise exposure. During the April 2012 VA exam, the examiner diagnosed bilateral sensorineural hearing loss, but was unable to provide an opinion without resorting to speculation. The claims file had not been provided to the examiner. The examiner offered an addendum opinion in June 2012 following receipt of the claims file. She opined that the Veteran's current hearing loss was not related to service because he had normal hearing at entrance and exit examinations. Furthermore, his tinnitus was more likely related to his hearing loss and not his noise exposure in service. The Veteran was afforded another VA examination for hearing loss and tinnitus in November 2015; diagnoses of bilateral sensorineural hearing loss and tinnitus were confirmed. The examiner opined that his current hearing loss and tinnitus were not due to service because he had normal hearing at entrance and separation from service, and there was no significant in-service threshold shift. The examiner quoted the 2005 Institute of Medicine Study "Noise and Military Service: Implications for Hearing Loss and Tinnitus" in support of her opinion. The examiner also noted that an association between tinnitus and noise exposure could not be assumed to exist in the absence of objectively verifiable noise injury. "Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. We recognize that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries." The Veteran has competently and credibly indicated that he has experienced bilateral hearing loss and tinnitus during and since service. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss and tinnitus disabilities are related to his military service. The Veteran is also competent to report the onset of decreased hearing acuity and ringing/cricket noises in both ears. In light of his MOS described above, it is highly probable that he was exposed to hazardous noise, and thus his exposure is conceded. The Board assigns the purported June 2012 and November 2015 VA opinions little probative weight. Although there was no discernable threshold shift during service, the Veteran has competently and credibly provided consistent statements regarding the onset of his bilateral hearing loss and tinnitus. The November 2015 examiner found that tinnitus could not be related to noise exposure during service if a noise injury was not verified. However, the Veteran testified during the hearing and submitted statements regarding specific instances in which he was exposed to noise from anchors dropping and being picked up, as well as planes during takeoff. As such, the Board will resolve all reasonable doubt in his favor and grant entitlement to service connection for bilateral hearing loss and tinnitus disabilities. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Pulmonary Disease The Veteran contends that he has lung cancer, otherwise claimed as a pulmonary disease, that was caused by exposure to asbestos during service. VA has conceded exposure to asbestos based on his MOS and the ships he served on while in the Navy. The Board now moves to discuss whether he has a current disability that was caused by exposure asbestos during service. Review of his service treatment records reveals no diagnosis or treatment for any pulmonary disease, to include any complaints of a cough or chest pain. His separation examination indicated his respiratory system was normal. VA treatment records showed that he was a former smoker; although, there was no indication for how long, nor were there any diagnoses or complications noted to be related to his smoking. In September 2011, the Veteran visited his primary care doctor to investigate the cause of a severe cough and difficulties breathing; a chest x-ray was performed and a 5mm nodular density, identified as a small granuloma on the right was found. VA doctors performed a CT test and found a thyroid nodule on the left lobe. An ultrasound performed a year later suggested a benign etiology of the thyroid nodule; a note indicated another ultrasound should be performed in a follow-up, however, the records do not show this was accomplished. The Veteran was afforded a VA examination for respiratory conditions in November 2015. He reported that he was never officially diagnosed and refused to have a biopsy following discovery of the spot in his lung. He stated that he had a cough with white phlegm for the previous five years. The examiner reviewed the x-ray and CT scan completed in 2011, noting the findings of a small granuloma and a nodule on the thyroid. The examiner performed a chest x-ray, which indicated that his heart was in the upper limits of normal size and his lungs were clear. The examiner opined that there was no active cardiopulmonary disease. During the October 2017 Board hearing, the Veteran testified that he went to his private doctor because he was concerned about an ongoing cough. As noted above, the doctor performed a chest x-ray and found a spot on his lung. He took the results to VA and another x-ray confirmed there was spot on his lung. He was told a biopsy had to be performed before a diagnosis could be rendered; however, nothing was done and the Veteran did not wish to undergo a biopsy. Based on the foregoing, the Board finds that service connection for a pulmonary disease is not warranted. No diagnosis was offered following the CT scan and x-ray that found a nodule or spot on his lung because the Veteran never had a biopsy. An ultrasound performed one year later found that the nodular density was benign in nature. Moreover, the chest x-ray performed as part of the November 2015 VA exam found no spot, nodule, or anything that might have been related to a pulmonary disease or respiratory condition. His lungs were clear and the x-ray was normal. The threshold requirement for the granting of service connection, including for presumptive service connection, is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a pulmonary disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of any pulmonary disability during the relevant period on appeal. The only other evidence presented in regard to the presence of any pulmonary disability has been the Veteran's own statements based upon the finding of a lung nodule. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general, or respiratory/pulmonary medicine more particularly, and that he is merely speculating as to whether he has a current diagnosis of a lung disability. In this regard, he is not competent to diagnose such disability, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a current diagnosis of a pulmonary disability are lacking in probative value. Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of a pulmonary disability during the appeals period. Absent the required diagnosis of a pulmonary disability at any time during the appeals period, there is no current disability to attribute to the Veteran's military service. Brammer, 3 Vet. App. at 223. This decision does not preclude the Veteran from filing again for service connection for a lung disability if he is later diagnosed as having one. For the reasons provided above, the preponderance of evidence is against the Veteran's claim for a pulmonary disability, to include lung cancer. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for a pulmonary disability is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs