Citation Nr: 1803320 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-34 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a respiratory condition. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran had active service from October 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge in September 2016 and a copy of that transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). 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). The issue of entitlement to service connection for a respiratory condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a rating decision issued in December 2008, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. 2. Evidence submitted since the December 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. The most probative medical opinion evidence shows that the Veteran's bilateral hearing loss is not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The December 2008 rating decision is final. 38 U.S.C. §§ 5103, 5103A, 7105(c) (2012); 38 C.F.R. §§ 3.104 (a), 20.302(a), 20.1103 (2017). 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156 (a) (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA's duty to notify was satisfied by a letter that was sent to the Veteran in February 2013. 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). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. New and Material Evidence Under 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156 (a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Historically, the Veteran filed a claim for service connection for bilateral hearing loss in May 2008. In a December 2008 decision, the RO denied the claim and concluded the condition neither occurred in nor was caused by service, and there was no objective medical evidence showing a clinical diagnosis with a link to military service and there was no evidence of a diagnosis of a hearing loss to a compensable degree within one year of discharge from the military. The Veteran was notified of this decision by way of a December 31, 2008, letter. The Veteran did not appeal this decision and no additional evidence pertinent to the issue was associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156 (b) (2016); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Board notes that after the December 2008 rating decision, the Veteran's personnel file was added to the claims file. 38 C.F.R. § 3.156 (c). However, the Veteran's personnel records are not relevant to the claim to reopen. Thus, the December 2008 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The relevant evidence of record at the time of the December 2008 rating decision included the Veteran's service treatment records and June 2008, July 2008 and October 2008 VA examination reports. The Veteran filed a claim to reopen in December 2012. The relevant evidence added to the file since the December 2008 rating decision includes an April 2013 private opinion, an October 2013 VA examination report, an August 2016 private opinion and the September 2016 Board hearing transcript. The Board finds that some of the evidence received since the December 2008 rating decision is new and material; specifically, the April 2013 and August 2016 private opinions that concluded the Veteran's bilateral hearing loss is related to his military service. As new and material evidence has been received, the previously denied claim of service connection for bilateral hearing loss is reopened. The Veteran's appeal to this extent is allowed. Service Connection The Veteran contends that he has bilateral hearing loss that is related to his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Audiometric testing measures hearing levels (in decibels) over a range of frequencies (in Hertz); the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schoeder et al. eds., 1988)). 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. Turning to the evidence of record, the Veteran has a current diagnosis of bilateral hearing loss as evidenced by the October 2008 VA examination. The Veteran's Maryland CNC test scores were 84 percent in both ears. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 60 60 LEFT 10 15 25 70 65 Additionally, the Veteran's DD-214 shows that his military occupational specialty was light weapons infantry and he is in receipt of the Sharpshooter Badge. As such, the Board finds that the Veteran's report of in-service noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C.A. § 1154 (a). Therefore, the Veteran's claim turns on whether his currently diagnosed bilateral hearing loss is related to his military service. In this regards, the Veteran had in-service audiological evaluations in October 1963 and August 1966 at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. For service audiological evaluations conducted prior to January 1, 1967, VA protocol is to presume the ASA standard was used. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The Veteran's October 1963 enlistment audiometric test reveals that the Veteran's pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) 10 (20) X 5 (10) LEFT 0 (15) 5 (15) -5 (5) X 0 (5) The Veteran's August 1966 separation audiometric test reveals that the Veteran's pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) X 0 (5) LEFT 0 (15) 0 (10) -5 (5) X 10 (15) The Veteran's August 1966 separation report of medical history shows that the Veteran denied ear, nose or throat trouble and running ears. An undated statement of medical condition shows that the Veteran affirmed there had been no change in his medical condition since his last medical examination in August 1966 with no exceptions. On his May 2008 claim, the Veteran reported that the noise of the artillery firing from the 90mm recoil rifle would cause his ears to ring and hurt. The Veteran was afforded a VA examination in June 2008. The Veteran reported that the condition has existed since 1964. The Veteran reported his MOS and duties as an infantryman. The Veteran reported that he did not use any hearing protection and he did not require a hearing conservation program. The Veteran reported that after military service he worked doing the following jobs: plumbing and foreman for more than 30 years with hearing protection. The Veteran reported that he entered a hearing conservation program. The Veteran denied any exposure to loud noise outside of military service. The examiner concluded that a diagnosis of hearing loss could not be made due to unreliability during testing. The Veteran was afforded a VA examination in July 2008. The Veteran reported that the condition has existed since 1963. The Veteran reported that this condition began when he was in service, serving 3 years in infantry and assigned to a guard artillery unit. The Veteran reported that he did not use any hearing protection and did not require a hearing conservation program. The Veteran reported that after military service, he worked doing the following jobs: (1) car salesman for 3 years with hearing protection; he entered a hearing conservation program, and (2) plumber for 40 years with hearing protection; he entered a hearing conservation program. The Veteran did not report any exposure to loud noise outside of military service. The examiner concluded that it was at least as likely as not that the Veteran's hearing loss was due to being a light weapons infantryman because hearing loss occurs as a direct result of exposure to high intensity sound from firing weapons. The Veteran was afforded a VA examination in October 2008. The examiner noted the in-service audiological reports and the June 2008 VA examination. The examiner also noted the July 2008 VA examination and stated that the examination was significant for obvious inconsistencies between pure tone findings and speech audiometry findings that were not identified by the examiner. The examiner concluded that based on these observations, valid interpretation of results from the July 2008 examination could not be provided. The examiner noted the Veteran's reported medical history. The Veteran also reported occasional recreational noise exposure from proximity to small arms fire during target shooting activities. The examiner noted that the Veteran otherwise denied a significant history of recreational noise exposure. The examiner concluded that it was less likely than not that the Veteran's bilateral hearing loss was related to his military service. The examiner explained that the October 1963 examination was consistent with hearing sensitivity within normal limits. The examiner explained that the August 1966 examination also revealed hearing sensitivity within normal limitus. The examiner explained that thus, based on a review of the available audiometric data from the Veteran's c-file it is noted that, while a disabling degree of hearing loss is noted bilaterally, given hearing, within normal limits for each ear at the time of the Veteran's separation from service, and in the absence of clinical or research evidence supportive of a delayed onset hearing loss attributable to acoustic trauma it is less likely than not that the Veteran's current bilateral hearing loss is attributable to his history of military service. An August 2013 private treatment record shows that the Veteran presented with a history of hearing loss which he states began while serving in the Army. The audiologist noted that the diagnosis, per VA standards, was binaural hearing loss. The audiologist explained that after reviewing the Veteran's reported service history, it is at least as likely as not that the Veteran's hearing loss was initiated by his exposure to hazardous noise while in the service, as recurrent noise from weapons fire has been shown to result in the development of hearing loss and/or tinnitus. The Veteran was afforded a VA examination in October 2013. The examiner noted that the Veteran's c-file was carefully reviewed and was notable for both an entrance examination completed in October 1963 and a separation examination completed in August 1966 that were consistent with hearing sensitivity within normal limits bilaterally. The examiner explained that although slight changes in sensitivity between the Veteran's entrance and exit examination are noted at 500 and 1000 Hz in the right ear, review of the Veteran's degree and audiometric configuration of his hearing test results completed in October 1963 and again in August 1966 are consistent with hearing sensitivity well within normal limits bilaterally and are not supportive of either acoustic trauma or a significant shift in overall hearing sensitivity during his military service. The examiner reported that additional review of the Veteran's c-file reveals no record of complaint or treatment of hearing loss in the Veteran's service records. The examiner also explained that review of the Veteran's c-file is also absent for any evidence that supports the presence of hearing loss directly following his military service. The examiner noted that no evidence documenting hearing loss is present in the Veteran's c-file until an audiogram was completed on June 2008. The examiner noted that the Veteran's c-file was notable for additional audiograms completed in June 2008, July 2008, and October 2008 and most recently in August 2013. The examiner explained that a c-file review as well as a case history review provided by the Veteran is notable for a significant history of occupational noise exposure for many years following his discharge from military service. The examiner noted that the Veteran reported work for an oil field equipment manufacturer and work for many years as a plumber/pipe-fitter with enrollment in a hearing conservation program. The examiner also noted that the Veteran reported recreational noise exposure from small arms target shooting. The examiner explained that thus, given results consistent with hearing sensitivity well within normal limits bilaterally at the time of the Veteran's discharge from military service as documented by his exit audiometric examination; the absence of audiometric evidence in the Veteran's c-file that is supportive of either acoustic trauma or a significant shift in overall hearing sensitivity during his military service; the absence of audiometric evidence that supports hearing loss directly following the Veteran's military service or for a period of over forty years following his discharge from military service; the documented and reported presence of occupational noise exposure as supported by the Veteran's work history and case history report of occupational and recreational noise exposure following his discharge from military service; and given the absence of well-supported clinical or research evidence that is consistent with delayed onset hearing loss that is attributable to noise exposure or acoustic trauma that occurs weeks, months, or years after exposure, it is less likely than not that the Veteran's current hearing loss is due to acoustic trauma encountered during his military service. An August 2016 private treatment record shows that the Veteran presented with a history of hearing loss. The Veteran reported his in-service history of noise exposure. The Veteran reported that he did sometimes have access to hearing protection and used it when it was available. The audiologist noted that post discharge, the Veteran's work history included pipe fitting and welding. The examiner explained that the diagnosis, per VA standards was bilateral hearing loss. The audiologist explained that after reviewing the Veteran's reported service history, it is at least as likely as not that the Veteran's hearing loss and tinnitus is a result of his exposure to hazardous noise while in the service since recurrent exposure to hazardous, loud noise from 8 inch guns, 105 Howitzers and machine guns is known to result in the development of hearing loss and/or tinnitus. The evidence shows that there are conflicting medical opinions of record with regard to the matter of whether the Veteran has bilateral hearing loss due to service. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board finds that the private nexus opinions are of little probative value because they do not reflect a review and/or an accounting of the Veteran's service treatment records which contain such relevant information as the Veteran's audiometric findings showing the condition of his hearing upon entrance and exit from service. Also, while the opinions note the Veteran's post-service employment as a plumber and pipe fitter, the opinions do not provide a medically sound basis for finding that the current hearing loss is due to in-service noise exposure to the exclusion of post-service noise exposure. This is very significant in light of the Veteran's normal findings upon his separation from service. In contrast, the October 2013 VA examiner reviewed the Veteran's claims file, and provided an opinion with a supporting rationale based on sound medical principles. As such, the Board finds that the negative nexus opinion submitted by the October 2013 VA examiner outweighs the positive nexus private opinions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (providing that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating most of the probative value of an opinion comes from its underlying reasoning, not just from mere review of the record, although that, too, has its importance if evidence in the file may affect the underlying basis of the opinion such as by revealing relevant facts). Additionally, the Board acknowledges the Veteran's assertions that his bilateral hearing loss is related to his military service. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the lay opinion could possibly be sufficient to serve as the required nexus for the Veteran's claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran's hearing loss is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's sensorineural hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the October 2013 VA expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). Thus, the Board finds that the lay opinion is not entitled to significant weight as compared to the VA opinion which determined that the Veteran's bilateral hearing loss is not related to his service. Finally, the Board recognizes that sensorineural hearing loss is considered to be an enumerated condition under 38 C.F.R. § 3.309(a). There, however, is no medical evidence or credible lay evidence that such condition was noted in service. While the Veteran currently contends that he had chronic symptoms in service, the Board finds that the evidence contemporaneous to his service is more reliable in regard to the state of his health. Specifically, the Veteran's August 1966 separation report of medical history shows that while he reported a positive response for a history of whooping cough, venereal disease, and car, train, sea, or air sickness, he denied "ear, nose or throat trouble." An undated statement of medical condition shows that the Veteran affirmed there had been no change in his medical condition since his last medical examination in August 1966 with no exceptions. A contemporaneous statement as to a declarant's then-existing physical condition, such as his medical examination reports and history reports (as opposed to his current statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Therefore, the medical history report is accepted as the credible and accurate account of the condition of the Veteran's hearing during service and upon discharge. There is also no medical evidence or credible lay evidence that hearing loss manifested to a compensable degree within one year of the Veteran's discharge from service. Therefore, presumptive service connection or service connection based on the theory of continuity of symptomatology is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss; the appeal is granted to this limited extent. Entitlement to service connection for bilateral hearing loss is denied. REMAND The Veteran has a current diagnosis of mild pulmonary asbestosis based on fibrotic changes on chest radiograph in the context of occupational exposure to asbestos dust fibers with a latency that exceeds 35 years as evidence by the October 2002 private treatment record. The October 2002 private treatment record shows that the Veteran reported pre-service and post-service exposure to asbestos. The Veteran subsequently reported in-service exposure to asbestos on his July 2013 notice of disagreement. The Board notes that M21-1, provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. As the Veteran has a current diagnosis of asbestosis and has provided lay testimony regarding in-service exposure, the Board finds that a remand is necessary to follow the procedures outlines in the M21-1. The Board also finds that if it is determined that the Veteran was exposed to asbestos during his active military service, then the Veteran should be afforded a VA examination to determine the nature and etiology of any current respiratory disorder, to include asbestosis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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). Expedited handling is requested.) 1. Provide the appellant the opportunity to identify any pertinent evidence, from VA or otherwise. The AOJ should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Conduct appropriate development, as mandated by the VA Adjudication Procedure Manual, to verify any potential exposure to asbestos during the Veteran's service. A formal finding should be issued regarding the likelihood that the Veteran was exposed to asbestos during his active service. The finding should include a rationale and should be associated with the record. 3. If and only if in-service asbestos exposure is found, schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory condition, to include asbestosis. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The VA examiner should provide a medical opinion addressing whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran has a current respiratory disorder diagnosis, to include asbestosis, that is consistent with in-service asbestos exposure as claimed by the Veteran. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs