Citation Nr: 1802875 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 15-35 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to March 1959 and October 1961 to August 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from March 2014 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. This case was previously remanded in December 2016 and has been returned for appellate review. The Board finds there has been substantial compliance with its April 2010 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) 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. The preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss disability manifested within a year of his separation from active duty service. 2. The preponderance of the evidence weighs against finding that the Veteran's bilateral hearing loss disability was incurred in, or is otherwise related to, his service. 3. The preponderance of the evidence weighs against finding that the Veteran's COPD was incurred in, or is otherwise related to, his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by November 2013 and April 2014 VA Form 21-526EZ, Fully Developed Claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained all relevant medical records and evidence identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations and opinions, with regard to the Veteran's hearing loss and lung condition claims. The Board acknowledges the Veteran's representative arguments that the January 2017 VA examiner was unaware of the standards for hearing loss. See February 2017 VA examination report. However, the Board finds the January 2017 VA examiner's opinions adequate, and the merits are discussed in detail below. Accordingly, the Board will address the merits of the claims. II. Service Connection Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Certain chronic disabilities, such as a sensorineural hearing loss disability, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1137; C.F.R. §§ 3.303, 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.30(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a Veteran has a chronic condition in service and still has that condition. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The United States Court of Appeals for the Federal Circuit has clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While hearing loss disability is not a disease specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature. Additionally, tinnitus has also been described as a disease of the nervous system and is deemed a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, service connection may be granted on a presumptive basis for the sensorineural hearing loss and tinnitus if shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for a hearing loss disability. See Hensley v. Brown, 5 Vet. App. at 159 (1993). The Veteran is competent to discuss observed physical symptoms, such as a whooshing or roaring noise in the ears. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) ("ringing in the ears is capable of lay observation"). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Analysis Hearing Loss The Veteran has a current bilateral hearing loss disability for VA purposes. See July 2014 VA examination report. Regarding the second element of service connection, the Veteran has reported in-service acoustic trauma as a result of artillery firing without wearing hearing protection and the Board notes that the Veteran is service-connected for tinnitus. Thus, in service noise exposure is conceded and element two is satisfied. Finally, with regard to the third element of service connection, the Veteran was afforded a July 2014 VA examination and the examiner opined that the Veteran's bilateral hearing loss is not as least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner explained that the service treatment records (STRs) showed an exit examination with hearing well within normal limits for VA purposes. The Board finds the examiner competent and credible, but affords reduced probative value as the opinion did not include a complete rationale. In a January 2017 VA Addendum opinion, the VA examiner explained that the Veteran reported noise exposure from artillery and as noted in the initial exam, hearing was within normal limits as discharge. The examiner further explained that there is not significant supportive documentation in the research literature to suggest the delayed onset hearing loss following noise exposure. The examiner opined that with normal hearing at discharge, it continued to be his opinion that it is not as least as likely as note that the current hearing loss is associated with noise exposure sustained while the Veteran was on active duty. The Board finds the examiner competent and credible and affords significant probative value as the examiner reviewed the record and provided a complete rationale for his opinion. The Board notes the Veteran's representative's argument regarding the issue of delayed onset of the Veteran's hearing loss that, that there is a "myriad" of studies that demonstrates hearing loss is not often manifested until many years after noise exposure and that, according to the National Institute on Deafness and Other Communication Disorders (1999), hearing loss develops gradually so that people may lose a significant amount of hearing before becoming aware of its presence. See Veteran's Representative's October 2017 Written Brief of Argument. However, the Board notes that the VA examiner clearly noted that his opinion was based on a review of current medical literature. While the representative referred to there being a myriad of studies that support their position, the only specific study cited by the representative is approximately 18 years old. Here, the Board finds the opinion of a competent medical care practitioner based on a review of current literature to be significantly more probative that the general assertions of the representative. Having reviewed the record, the Board cannot find there is a nexus on a presumptive basis because there is no competent evidence that the Veteran's sensorineural hearing loss manifested to a compensable degree within a year of his separation from active duty service. See 38 U.S.C. §§ 1101, 1112, 1137; C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385. The Board further finds that the third element is not otherwise met in regard to the Veteran's hearing loss. While the Veteran is competent to report decreased hearing acuity, the Board finds that the Veteran is not competent to relate his in-service noise exposure, to his post-service diagnosis of sensorineural hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Therefore, while the Board gives some probative weight to the Veteran's statements about noise exposure and the onset of his observable symptoms, the Board gives more probative weight to competent examiner with the training and expertise necessary to identify the etiology of complicated medical conditions including sensorineural hearing loss. Ultimately, the Board finds that the only competent medical opinion evidence in this case in regard to a nexus is from the April 2014 and January 2017 VA examiner, who found it was not as least as likely as not that the Veteran's hearing loss was related to service. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's hearing loss is related to his service. As such, the benefit of the doubt doctrine is inapplicable, and the claims must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). COPD The Veteran has a current diagnosis of chronic obstructive pulmonary disease (COPD), diagnosed in 2017. See February 2017 VA examination report. Thus, element one of service connection is met. Turning to the second element of service connection, the Veteran asserts that he was exposed to diesel that got into his lungs when a fuel bomb was ignited to mimic the force of an atomic explosion and that he caught pneumonia due to this exposure. The STRs indicate that the Veteran was admitted to the hospital in October 1958 and was subsequently diagnosed with pneumonia. The STRs indicate that the Veteran had been on the firing range before developing pneumonia. Thus, the Board finds that the second element has been satisfied. Finally, regarding the third element of service connection, the Veteran was afforded a February 2017 VA respiratory examination and the examiner opined that the Veteran's lung condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that currently, the Veteran has a diagnosis of COPD. This is most medically likely due to his history of having smoked for 30 years and his age. The crux of the matter appears to be if there is any evidence of any residual effects from his pneumonia during service in 1958 and it appears that there was no residual from the pneumonia. He had the pneumonia in October 1958. He apparently had a history of "frequent colds" even prior to service. His separation physical in March 1959 showed no lung findings. The examiner noted that the Veteran reported a history of shortness of breath, but that this was too vague to be helpful. The examiner also explained that further physical findings in September 1961, June 1962, and December 1963 all failed to find any respiratory condition. Chest x-rays after the pneumonia in January 1962 and December 1968 and even up to December 2002 were normal. The first abnormal x-ray was in 2011. Medically speaking if there were residuals from the pneumonia in 1958, there would likely be something found on x-rays within the first one to three years of this at the latest. Most likely it would have been within the first few months after the pneumonia. The tendency to get repeated pneumonias is not a residual of getting a first pneumonia. The Veteran's current lung conditions (COPD and some fibrotic scarring in the right lung) did not show up until many, many years after service and are not medically likely due to the pneumonia in service. The Board finds the VA examiner competent and credible and affords probative weight as the opinion is based on a review of the record and examiner provides a through rationale. As there is no competent opinion to the contrary, the third element of service connection has not been satisfied. In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran's COPD is related to his service. As such, the benefit of the doubt doctrine is inapplicable, and the claims must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for COPD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs