Citation Nr: 18152225 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-28 030 DATE: November 21, 2018 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to a rating of 60 percent, but no higher, for bronchial asthma, effective from April 17, 2015, is granted. FINDING OF FACT 1. The Veteran’s bilateral hearing loss is less likely than not related to in-service noise exposure. 2. The Veteran’s service-connected asthma requires daily inhalational therapy and has been manifested by a forced expiratory volume in one second (FEV-1) of between 40 to 55 percent predicted. 3. The Veteran’s service-connected asthma is not manifested by an overall disability picture that more nearly approximates FEV-1 of less than 40 percent predicted; or, FEV-1/Forced Vital Capacity (FVC) of less than 40 percent; or, more than one attack per week with episodes of respiratory failure; or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). 2. Resolving all doubt in the Veteran’s favor, the criteria for an increased rating of 60 percent, but no higher, for service-connected bronchial asthma have been more nearly approximated for the entire period covered by this claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code (DC) 6602 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1953 through April 1955. The case comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his currently diagnosed hearing loss was caused by, or incurred in, his service. The Veteran specifically asserts that he was part of an artillery crew while on active duty and that this acoustic trauma caused his hearing loss. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101(3), 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.309(a) (2017). Establishing service connection requires competent evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2017). Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board notes that the Veteran was afforded a VA examination in April 2015 which confirmed that the Veteran had bilateral hearing loss for VA purposes. However, the preponderance of the evidence is against finding that the current hearing loss is related to in-service noise exposure. There is no evidence in the Veteran’s service treatment records to indicate that the Veteran’s hearing loss began during service. The Veteran did not indicate that he experienced any hearing problems until complaints of hearing loss in 1999 VA treatment records, and a March 2000 audio exam provided in conjunction with a claim for NSC Pension. This was a little less than 50 years after separation from service. During the Veteran’s 2015 VA examination the examiner noted that an audiometer examination was not performed when the Veteran exited service in 1955 but that other tests performed during the separation examination showed that the Veteran had no signs of hearing loss or impairment at the time. The examiner also noted that the Veteran did not complain of, or seek treatment for, any hearing impairment while in service. Further, in coming to this conclusion, the examiner noted that no signs of progressive hearing loss were displayed until 2004. In light of these facts, the examiner opined that the Veteran’s bilateral hearing loss is less likely than not due to acoustic trauma or noise exposure during military service. The examiner explained that medical literature establishes that exposure to high levels of noise causes either immediate hearing loss, such as in the cases of noise/acoustic trauma, or progressive hearing deficits during prolonged periods of exposure during military service. The examiner further explained that retroactive impacts in hearing are not expected so many years after exposure to military noise. Based on this, the examiner concluded that the Veteran’s hearing loss is less likely than not due to acoustic trauma or noise exposure during military service. While the Veteran asserts that his service in the artillery crew caused his hearing loss, and while the Board accepts that he was part of an artillery crew in service, the Veteran is not competent to offer an etiology opinion in relation to his hearing loss, particularly given that continuity of symptoms is not shown, and the Veteran did not report hearing loss for many years following service discharge. The Veteran has not provided any medical opinion which links his current hearing loss with his service or which contradicts the findings of the VA examiner. The Board is mindful that the VA examiner’s rationale relies, in part, on the fact that the Veteran’s hearing was normal at separation and no hearing loss was complained of or noted until decades after discharge; however, the examiner, in reaching his conclusion, also relied on medical literature which holds that retroactive impacts to hearing are not expect so many years after exposure to military noise. Further, the examiner did not rely solely on the absence of documented hearing loss while the Veteran was in service in reaching his opinion. The examiner also relied upon the fact that no treatment had been sought for hearing loss or hearing deficiencies in the nearly 50 years between when the Veteran left service and when he first sought treatment for pension purposes. In reaching the above conclusions, 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 in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Accordingly, service connection for hearing loss is not warranted. 2. Entitlement to a rating in excess of 30 percent for bronchial asthma. The Veteran contends that a higher disability rating for his bronchial asthma is warranted. Bronchial asthma was originally service-connected in October 1955 with a disability rating of 10 percent. The Veteran filed for an increased rating for his bronchial asthma in January 2015. An April 2015 rating decision increased the Veteran’s disability rating to 30 percent, effective from January 7, 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Under Diagnostic Code (DC) 6602, a 30 percent rating is warranted for forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted, or; FEV- 1/forced vital capacity (FV of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalation anti-inflammatory medication. A 60 percent rating is provided where there is FEV-1 of 40 to 55-percent predicted, or; FEV-1/ FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 of less than 40 percent predicted; or FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, DC 6602 (2017). The Board recognizes that under 38 C.F.R. § 4.96, which gives special provisions regarding evaluation of respiratory conditions, post-bronchodilator results should be used for evaluation purposes unless the results of post-bronchodilator pulmonary function tests were poorer than the pre-bronchodilator results, in which case pre-bronchodilator results should be used. 38 C.F.R. § 4.96 (d)(5) (2017). However, that regulation explicitly applies only to DCs 6600, 6603, 6604, 6825-6833, and 6840-6845; or rather, DC 6602 is expressly excluded from that special provision. 38 C.F.R. § 4.96 (d). As such, the Board may analyze the rating criteria using either the post- or pre-bronchodilator scores for the FEV-1 and FEV-1/FVC tests. In this case, it will use the more favorable pre-bronchodilator results as they lead to a higher favorable rating for the Veteran. The Veteran's bronchial asthma is currently rated as 30 percent disabling under 38 C.F.R. § 4.97, DC 6602. The Veteran was afforded two separate VA examinations during the appeal period. The initial examination was conducted in April 2015. At this examination the Veteran reported that he was not taking any corticosteroid medications and stated that he has not had any asthma attacks with respiratory failure in the previous twelve months. Pulmonary function tests (PFTs) were performed during the examination and the VA examiner indicated that the PFTs accurately reflect the Veteran's current pulmonary function. The pre-bronchodilator results included an FEV-1/FVC of 59 percent and a FEV-1 of 41 percent predicted. Post-bronchodilator results showed improvement. The second VA examination was conducted in March 2018. The examiner checked a box indicating that the Veteran was taking corticosteroid medication to treat his symptoms. However, neither the dosage nor the course of treatment was noted. Rather, the examiner specifically identified the Veteran’s medication as an inhaled bronchodilator and inhaled anti-inflammatory. Further, although the Veteran reported to the examiner that he had been seeking emergency room treatment at a private hospital for exacerbation, the examiner clarified that those visits were less frequent than monthly. During this examination the examiner again administered a PFT. The pre-bronchodilator results included an FEV-1/FVC of 62 percent and a FEV-1 of 48 percent predicted. Post-bronchodilator results showed improvement. In light of both of these examinations, the Board finds that the criteria for the assignment of the next higher, 60 percent rating are more nearly approximated because the Veteran’s FEV-1 has been shown to be between 40 and 55 percent predicted during the entire period covered by this claim. The Veteran’s bronchial asthma, does not warrant the assignment of a rating in excess of 60 percent at any time covered by this claim. A 100 percent rating is assigned for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, DC 6602 (2017). These findings are not demonstrated. The record does not reflect an FEV-1 of less than 40 percent predicted or an FEV-1/FVC of below 40 percent. Further, the record does not reflect more than one attack per week with episodes of respiratory failure; and, the Veteran’s medication has not been shown to include a daily oral systemic high dose corticosteroid or immuno-suppressive. Thus, the Board finds that the Veteran’s systems do not more nearly approximate the criteria for the assignment of a 100 percent disability rating. (Continued on the next page)   Accordingly, an increased rating of 60 percent, but not higher, for the bronchial asthma is granted for the entire period covered by this claim. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk