Citation Nr: 18152087 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 11-07 959 DATE: November 21, 2018 ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema, is denied. Entitlement to service connection for asbestosis is denied. Entitlement to a compensable disability rating for right ear hearing loss for the period prior to December 29, 2015 is denied. Entitlement to a compensable disability rating for bilateral hearing loss beginning December 29, 2015 is denied. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during active service aboard a Navy ship. 2. Service treatment records show repeated treatment for a cold and cough on in February, March, August and November of 1967. However, his lungs were normal on clinical and x-ray examination on separation examination in September 1968 and on reserve examination conducted in January 1971. 3. Post-service medical records reveal that the Veteran has been diagnosed with COPD and/or emphysema beginning in December 1996. There is no competent evidence linking any current respiratory disorder to any period of service or to asbestos exposure during service. 4. There is no diagnosis of asbestosis or any asbestos-related respiratory disorder. 5. Prior to December 29, 2015 the Veteran’s right ear hearing loss was manifested by Level I hearing loss in the right ear. 6. Beginning December 29, 2015, the Veteran’s bilateral hearing loss is manifested by Level II hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include COPD and emphysema, have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for asbestosis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a compensable disability rating for right ear hearing loss prior to December 29, 2015, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for a compensable disability rating for bilateral hearing loss beginning December 29, 2015 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. The case was previously before the Board in December 2016, when it was remanded for examination of the Veteran, medical opinions, and additional adjudication. The requested development has been completed. Service Connection for Respiratory Disorders Generally, to establish service connection, a claimant 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 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In June 2008, the Veteran filed a claim for service connection for bronchitis, emphysema, and asbestosis. He believes that he was exposed to asbestos while serving as an electrical technician aboard the USS Yellowstone (AD-27) and that this exposure led to his current respiratory disorders. Accordingly, his claims for service connection for his various respiratory disorders are all based upon the assertion that they are caused by asbestos exposure during active duty. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (Court) observed that there is no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA issued a circular on asbestos-related diseases that provides some guidelines for considering compensation claims based on exposure to asbestos. Ultimately the information in the circular has been subsumed in to the appropriate sections of VA manual M21-1. More recently the Court has held that “neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure.” Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. Service personnel records indicate the Veteran served aboard the USS Yellowstone as an electronics technician. An August 2017 VA administrative decision concedes that the Veteran was exposed to asbestos during active service. Service treatment records show treatment for a cold and cough on several occasions in February, March, August and November of 1967. In September 1968 separation examination of the Veteran was conducted and his lungs were normal on both clinical and x-ray examination at that time. In January 1971, over two years after the Veteran separated from active duty, a reserve examination was conducted. At that time, his lungs were again shown to be normal on both clinical and x-ray examination. Also, on the accompanying report of medical history he indicated that he did not have any history of shortness of breath or chronic cough. The Veteran has a current respiratory disability. The large volume of private and VA post-service medical records establish that he has been diagnosed variously with emphysema and COPD. These diagnoses have been made as a result of multiple clinical evaluations, and are supported by multiple: pulmonary function tests (PFTs), chest x-rays, and computed tomography (CT) examinations which are of record. The Board notes that emphysema is a form of COPD so that the diagnoses are somewhat interchangeable. Thus, the remaining question is whether the current respiratory disability is related to service. At his hearing before the Board, the Veteran stated his belief that he had been exposed to asbestos while serving in the Navy. He indicated he worked on a lot of old equipment doing preventative maintenance replacing capacitors and checking tubes. He indicated he was blowing out dust and did not know about asbestos until he began researching COPD, emphysema, and chronic bronchitis and started seeing references to asbestos. He reported that while in service he went to sick call for hacking, dry coughs which pretty much cleared up when he separated from service. He indicated that his coughs may have been on days when he was working on older equipment and inhaling “that stuff.” He also indicated he was responsible for transporting old equipment in a truck with air circulating around in the summertime and he thought that might have given him additional asbestos exposure. He reported pulling cables through racks surrounded in what he thought might have been asbestos because he could see dust coming out, although he did not realize what it was at the time. He further testified that following service, he was diagnosed with COPD and emphysema. A private medical examination report dated December 1996 is the initial diagnosis of the Veteran's current pulmonary disability. At that time the Veteran was 51 years old and reported smoking 1 ½ packs of cigarettes per day. He reported having problems with pneumonia for the prior month and a half. He had complaints of intermittent shortness of breath especially when in closed in spaces. He denied having symptoms of chronic cough. Clinical evaluation was conducted along with chest x-ray and PFTs. The physician felt the Veteran’s shortness of breath, dyspnea, was two distinct problems. One was hyperventilation secondary to claustrophobia; second was COPD with a moderate airflow obstructive defect. Treatment with inhaler medication was prescribed. Subsequent to the initial diagnosis of COPD in 1996, a large volume of private and VA medical records show continued diagnoses of COPD and/or emphysema. The Veteran’s disability is treated with prescribed medication, including inhalers, and more recently with oxygen therapy. The diagnosis of COPD and/or emphysema is supported in these post-service medical records by numerous PFTs, chest x-ray examinations and CT examinations. All the objective testing reveals COPD and obstructive pulmonary symptoms. There is no evidence of record showing any restrictive pulmonary diagnoses. In August 2017 a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported being diagnosed with COPD and being treated with oral medication, inhalers, and oxygen therapy. The Veteran also reported being exposed to asbestos during active service in the Navy, but denied having been diagnosed with asbestosis. The results of chest x-ray examination and CT examination indicated findings consistent with COPD. PFTs also revealed findings consistent with COPD, severe obstruction with air trapping was indicated; no restrictive lung defect was shown. The examining physician indicated that the Veteran’s COPD was less likely than not incurred in or caused by an in-service injury, event or illness. The physician expressed that the Veteran’s current COPD was related to his history of tobacco abuse. Moreover, the physician indicated that the Veteran did not have any asbestos related respiratory disorder, specifically indicating that “CT scans of the veteran’s chest do not indicate any findings consistent with asbestosis (it would be expected that if the veteran’s COPD was related to asbestos some findings consistent with asbestos would be noted on CT scan of the chest).” The examining physician was direct that the Veteran’s COPD was not caused by service or asbestos exposure further stating that contrary “to enthusiastic popular media reports, forceful opinions expressed on Internet discussion boards, and Veterans Service Officers’ heartfelt recommendations, there is no scientific evidence supporting the notion that exposure to asbestos causes COPD. Furthermore, based on veteran’s chest CT scans there is no objective evidence to support asbestosis; he does not meet diagnostic criteria for asbestosis.” The Veteran was again examined by VA in October 2017. The diagnosis was again COPD. The examining physician opined that the Veteran’s COPD was less likely than not incurred in or caused by service. In support of this conclusion, the physician noted that the COPD was more likely due to the history of tobacco abuse. He further found that diagnostic testing did not reveal findings consistent with asbestosis which would be expected if the COPD was related to asbestos. The Board has considered the Veteran’s statements, to include his assertions that his current respiratory disability is the result of his exposure to asbestos during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain, cough, or shortness of breath; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. With respect to the claim for service connection for COPD and emphysema, the preponderance of the evidence is against the claim. The Veteran has a current disability variously diagnosed as COPD and/or emphysema. However, there is no probative evidence of record linking the current disability to active service or to asbestos exposure during service. Rather, the evidence of record establishes that the Veteran’s current COPD is the result of his history of tobacco use and is unrelated to any asbestos exposure during service. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. With respect to the claim for service connection for asbestosis, the preponderance of the evidence is against the claim. Specifically, there is no competent evidence of a current diagnosis of asbestosis or any asbestos-related disability. The radiographic evidence of record, both CT and x-ray examinations, completely fails to show findings consistent with asbestosis. The PFTs of record also fail to show restrictive defect which is present for asbestos-related disorders and instead show findings of obstructive defect consistent with the diagnosis of COPD. The Veteran simply does not have asbestosis or any other asbestos-related respiratory disability. Without a current disability the preponderance of the evidence is against the claim and service connection is denied. Increased Ratings for Hearing Loss This appeal is from the initial disability rating assigned upon the award of service connection for hearing loss. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (“specified frequencies”). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. When impaired hearing is service-connected in only one ear, the non-service-connected ear is assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. The use of Table VIA is also appropriate when an examiner certifies that use of a speech discrimination test is not appropriate. 38 C.F.R. § 4.85. After review of the medical evidence of record which is adequate for rating purposes, the Board finds that the Veteran’s service-connected hearing loss has not exhibited an exceptional pattern of hearing impairment during any period covered by this appeal. The Veteran is service-connected for right ear hearing loss at a noncompensable disability rating prior to December 29, 2015; at that time a current hearing loss disability was not shown to exist in the left ear. 38 C.F.R. § 3.385. Effective December 29, 2015 a current hearing loss disability is shown to be present in both ears and service connection for bilateral hearing loss is established effective that date. After review of the evidence of record, the Board finds that an increased disability rating is not warranted for the Veteran’s service-connected hearing loss disability at any point during the period on appeal. In December 2008 a VA audiology Compensation and Pension examination of the Veteran was conducted. Audiometric testing of the right ear showed pure tone thresholds of 20, 40, 40, and 55 decibels, resulting in an average pure tone threshold of 39; speech audiometry revealed speech recognition of 98 percent which is designated as Level I hearing in the right ear. Because audiometric testing of the left ear did not reveal a current hearing loss disability under the criteria of 38 C.F.R. § 3.385 a designation of Level I hearing is assigned for the left ear. See 38 C.F.R. § 4.85(f). These test results do not show that an exceptional pattern of hearing impairment was present. The Veteran reported his right ear hearing loss caused him to read lips and listen to the television at levels too loud for others. VA audiology treatment records covering the period of the appeal show that the Veteran’s hearing loss was evaluated and that he was treated with hearing aids. However, these records do not contain audiometric data that is adequate for rating purposes. On December 29, 2015, the most recent VA audiology Compensation and Pension examination of the Veteran was conducted. Audiometric testing of the right ear showed pure tone thresholds of 30, 60, 65, and 70 decibels, resulting in an average pure tone threshold of 56 decibels; speech audiometry revealed speech recognition of 88 percent which is designated as Level II hearing in the right ear. Testing of the left ear showed pure tone thresholds of 25, 50, 60, and 65 decibels, resulting in an average pure tone threshold of 50 decibels; speech audiometry revealed speech recognition of 84 percent which is designated as Level II hearing in the left ear. Again, these test results do not show that an exceptional pattern of hearing impairment is present. The Veteran reported the impact of his hearing loss as “I have trouble hearing people talk, especially over the phone and on TV. I have to ask for things to be repeated.” The Board acknowledges that the Veteran had right ear hearing loss prior to December 2015, and currently has bilateral hearing loss, and sympathizes with his complaints regarding the functional impact of his hearing loss on his daily life, including difficulty understanding conversation. The Board notes, however, that the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. The VA examiners addressed the functional effects of the Veteran’s hearing loss on his daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In sum, the evidence reveals that prior to December 29, 2015 the Veteran’s service-connected right ear hearing loss was manifested by Level I hearing loss, with the assignment of Level I hearing loss in the left ear, which warrants the assigment of a noncompensable disability rating at that time. 38 C.F.R. § 4.85, Table VII. Effective December 29, 2015 the Veteran’s service-connected bilateral hearing loss was manifested by Level II hearing loss in the right ear and Level II hearing loss in the left ear which still only warrants the assigment of a noncompensable disability rating. Id. Accordingly, entitlement to schedular disability ratings in excess of those assigned for the periods in question are not warranted, and the appeals are denied. In this case, the Board finds that the schedular ratings currently assigned for hearing loss reasonably describe the Veteran’s disability level and symptomatology and therefore rating on an extra-schedular basis is not appropriate. See 38 C.F.R. §§ 3.321(b)(1), 4.85, Diagnostic Code 6100. The Veteran reports that his hearing loss impacts the ordinary conditions of his daily life in that he has trouble hearing; specifically, trouble hearing the television, people talking, and phone conversations. The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA’s audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday work environment and are not exceptional or unusual for someone with hearing loss. The Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc. Id. No such effects are present in this case. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel