Citation Nr: 18145569 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-15 218A DATE: October 29, 2018 ORDER Entitlement to service connection for respiratory lung disease is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection to sleep apnea, as secondary to respiratory lung disease, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his respiratory lung disease is at least as likely as not related to exposure to volcanic ash from the Mt. Pinatubo eruption. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to exposure to noise during service. CONCLUSIONS OF LAW 1. The criteria for service connection for respiratory lung disease are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to August 1992. The Veteran appeals an August 2014 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Board notes that the Veteran’s claims for bilateral hearing loss, respiratory lung disease, and sleep apnea were reopened by the RO in an August 2014 rating decision, and a May 2016 supplemental statement of the case. Finally, the Veteran’s representative did not request a Board hearing in his April 2016 VA Form 9. Service Connection The Veteran asserts that his respiratory lung disease is related to volcanic ash exposure from the Mt. Pinatubo eruption, and that his tinnitus is related to noise exposure in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for respiratory lung disease The Veteran has a current diagnosis of community acquired pneumonia. According to the Veteran’s DD-214 and military personnel record, the Veteran served as an optometrist at the United States Naval Hospital at the Subic Bay Naval Base (Subic Bay) in the Philippines. The Veteran was stationed at Subic Bay from February 1991 to January 1992. See Military Personnel Record. The eruption of Mt. Pinatubo, located about 40 km from Subic Bay, occurred in June 1991. The evidence of record, including several photographs, show Subic Bay inundated with volcanic ash from Mt. Pinatubo. Volcanic ash covered a land area of about 4000 km. See Col. Jay A. Clemens, Volcano! Evacuation and Military Medical Implications, ADF Health, April 2002, at 25. The eruption also released sulphur dioxide. Id. Sulphur dioxide and volcanic ash can cause fatigue, respiratory, and headaches. Id. In an July 2013 statement, the Veteran stated that initially he was sent to a hospital ship during the eruption for about a week before returning to Subic Bay. He asserts that Subic Bay was covered with a fine layer of volcanic ash. Pointedly, the Veteran stated, “You got the ash in your lungs no matter what you did, and as I was the only optometrist I was ordered to stay their [sp] even though the ash was everywhere. You literally worked and slept with the ash 24 hours a day.” See July 2013 Statement in Support. In a July 2013 private treatment note, a private physician opined that the Veteran’s breathing disability “could be related to some sort of pneumoconiosis or any other pulmonic lung disease that the volcanic ash could chronically do.” In an April 2014 statement, the Veteran stated that he felt dizzy, fatigue, breathlessness, and uncontrollable coughing shortly after being exposed to volcanic ash. He asserted that the symptoms got progressively worse leading to bouts of pneumonia. The Veteran was afforded a VA examination in January 2016. The VA examiner observed that the Veteran had moderately severe restrictive lung disease with a preserved DLCO consistent with pneumonia or any other space-occupying process. The VA examiner noted that the Veteran does not have history of smoking, and that his respiratory condition led to a 2013 hospitalization. The VA examiner opined that the Veteran’s respiratory condition was not related to volcanic ash exposure. The VA examiner observed that the Veteran’s x-rays and pulmonary function test (PFT) were unremarkable for any chronic or acute respiratory condition such as pneumonia. The VA examiner reasoned that it was more likely that the Veteran’s cough was caused by a compromised width and height of soft tissue in the posterior oropharynx. In December 2016, the Veteran received a private medical opinion. The private physician observed that the medical evidence of record pointed to the possibility of volcanic ash causing the Veteran’s breathing problems. Further, the private physician stated that although 2016 VA exam did not show an acute respiratory condition, there is objective evidence of a chronic respiratory condition. For example, in both 2013 (during the Veteran’s hospital stay) and 2016 tests, x-rays revealed atelectasis or scaring in the lower left lung, and PFTs revealed a decrease in diffusing volumes, evidence of a moderate obstructive lung defect, and the potential for a restrictive lung defect. Atelectasis can be caused by inhaling foreign objects, such as Volcanic ash. Finally, current medical literature supports a nexus between exposure to volcanic ash and respiratory conditions. Therefore, the private physician opined that the Veteran’s respiratory disability is related to volcanic ash exposure. In sum, the Board acknowledges the differing opinions proffered by two equally qualified medical professionals and concludes that one opinion does not outweigh the other. The Board finds that the evidence of record reflects the presence of volcanic ash in such quantity (the 1991 eruption of Mt. Pinatubo was one of the largest eruptions in the last century) that it would be hard to imagine how one would not be exposed to volcanic ash if they were at Subic Bay. Although the Veteran stated he smoked occasionally in school, the evidence of record is silent as to whether he smoked after he left school. The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran’s respiratory lung disease is related is related, or was aggravated by, his military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for respiratory lung disease is warranted. 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is from noise exposure during service, including working at Subic Bay. The Veteran assets that he has had periodic ringing in both ears since leaving service in 1992, and has increased since discharge. A Veteran is competent to observe he has ringing in his ears, and generally objective evidence of this condition is not possible. See Charles v. Principi, 16 Vet. App. 370 (2002). As mentioned above, the Veteran was stationed at Subic Bay, and worked as an optometrist at the naval hospital. A July 2014 VA examination found that the Veteran’s position has a high probability of exposure to hazardous noise, and thus the RO conceded noise exposure. Thus, the claim turns on whether the Veteran’s tinnitus is related to his in-service noise exposure. Regarding a nexus between the in-service event and the disability, the Board acknowledges the negative July 2014 VA examination. The Board also notes the Veteran’s competent and credible statements. For example, the Veteran complained in and around 1997 to his wife that he had ringing in his ears. See January 2017 Wife Lay Statement. The Veteran stated that he had ringing in his ears since discharge. See July 2013 Statement in Support. Further, a July 2013 private physician reported ringing in the Veteran’s ears. The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran’s tinnitus is related to military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection to sleep apnea, as secondary to respiratory lung disease, is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. The claims of service connection for sleep apnea, as secondary to respiratory lung disease, and bilateral hearing loss are remanded for further development. Regarding sleep apnea as secondary to respiratory lung disease, the Veteran asserted, in an October 2013 statement, that the volcanic ash caused his sleep apnea. A January 2016 VA examination opined that the Veteran’s sleep apnea was more likely caused by a weight increase since service, age, redundant soft tissue of the peritonsillar pillars, and decreased height of the airway. However, a December 2016 private opinion cited to medical studies linking sleep apnea with restrictive lung disease. As such, the Veteran’s representative argued that the Veteran’s sleep apnea may be secondary to the Veteran’s respiratory disability. See Appellant’s January 2017 Brief. Considering the cited medical studies, and that the Veteran’s respiratory lung disease is now service connected, a new VA examination is warranted. Regarding bilateral hearing loss, the Veteran was afforded a VA examination in July 2014. The VA examiner opined that the Veteran’s “hearing was within normal limits for VA purposes, with no significant changes during his active military service, there is no evidence to support onset of hearing loss during his active military service.” The VA examiner’s opinion was based solely on the Veteran’s entrance and exit audiographs. However, the Veteran, in an October 2013 statement, asserted that he believed that his hearing loss has continually increased since discharge. Further, the Veteran’s wife reported that the Veteran’s hearing has gotten progressively worse. See January 2017 Wife’s Lay Statement. As such, a new VA examination is warranted to determine his current audiograph results. The matters are REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran and his representative are asked to submit these records themselves. Provide the Veteran with the appropriate forms to obtain any private treatment records, or submit them. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. The clinician must give an opinion whether the Veteran’s bilateral hearing loss is at least as likely as not (50% probability) to be related to in-service noise exposure. 3. After the receipt of any outstanding treatment records, return the claims file, to include a copy of this remand, to the January 2016 VA examiner (exam for sleep apnea) for an addendum opinion. If the examiner who drafted the January 2016 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions, whether the Veteran’s respiratory lung disease is at least as likely as not (50% probability): a) proximately due to the result of the Veteran’s service connected respiratory lung disease; or b) aggravated (increased in severity) beyond its natural progress by the Veteran’s service connected respiratory lung disease. In considering these questions, the clinician must take note of the following: i. The December 2016 private medical opinion statement that, “current medical literature has also linked intrinsic restrictive lung disease to obstructive sleep apnea.” ii. The December 2016 private medical opinion statement that, “Robinson (2016) discusses that intrinsic etiology involves the lung parenchymal, such as interstitial lung diseases, as is that case with this Veteran’s respiratory condition, of which OSA is a common health issue. According to Troy and Corte in the World Journal of Clinical Cases (2014) interstitial lung diseases are characterized by inflammation of the lung parenchymal and fibrosis (scaring) which cause lung restriction. As scarring progresses this will lead to worsening gas exchange and the development of insufficient amounts of oxygen reaching the tissues. Sleep quality is therefore compromised by ‘nocturnal cough, medications, breathing difficulties, hypoxia, and obstructive apneas.’ The study further states, ‘The factors that predispose these patients to obstructive sleep apnea are not well understood, however it is believed that reduced caudal traction on the upper airway can enhance collapsibility.’ Strohl et al. (2012) reports, ‘Reduced lung volume leads to diminished airflow ostensibly via reductions in caudal traction forces.’ Pihtili et al. (2013) concluded obstructive sleep apnea (OSA) is common interstitial lung disease.” iii. The medical literature attached to the December 2016 private medical opinion. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel