Citation Nr: 20002271 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 16-13 795 DATE: January 10, 2020 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include due to asbestos exposure is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for diabetes mellitus type 2 (DM II), to include as a result of exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s COPD was caused by in-service exposure to asbestos. 2. The Veteran's bilateral hearing loss was noted at entrance into service. 3. The Veteran’s bilateral hearing loss did not increase in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310(a) (2018). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in May 2019. A transcript of the hearing is in the Veteran’s file. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include due to asbestos exposure The Veteran contends that his COPD resulted from his active duty service. Specifically, he claims that his condition resulted from asbestos exposure while drydocked in Long Beach, California. Turning to the evidence of record, the Veteran’s service treatment records are silent for complaints or documentation of COPD. The Veteran was a machinist’s mate in the Navy with probable exposure to asbestos. Post-service treatment records reflect that the Veteran was diagnosed with COPD in 2011. VA treatment records also indicate that the Veteran smoked a pack of cigarettes day for the last 40 years. On VA examination in December 2012, the Veteran stated that he had a history of smoking around a pack a day, but now reduced his smoking to a pack a week. The Veteran contends he was told he was exposed to asbestos when he was in drydock in Long Beach, CA, even though he did not see it himself. The examiner opined that it was less likely than not that the Veteran’s COPD was caused by service. Despite probable asbestos exposure, the Veteran’s chest x-rays were normal and did not show any active disease. There was no diagnosis or radiologic evidence of asbestosis. The examiner opined that the Veteran’s COPD is most likely related to the history of tobacco use over the past 20 years. The Board places high probative weight on the VA opinion, as the examiner reviewed the Veteran’s medical records and provided adequate rationale for the opinion that the Veteran’s COPD most likely resulted from smoking. The Board notes that there is no medical evidence of record to the contrary. The Board has considered the Veteran’s lay statements regarding his COPD and notes that the Veteran is certainly competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). However, without medical training, the Veteran has not demonstrated the competency to opine on matters requiring medical expertise, such as the etiology of a respiratory condition. See id. As such, the Board assigns little probative weight to the Veteran’s assertion that his COPD was caused by his asbestos exposure. Thus, there is no evidence of record to demonstrate a probative medical link between the Veteran’s COPD and asbestos exposure. As the weight of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id. On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to “convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111”). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. The Veteran was afforded a VA examination in October 2012, which confirmed the presence of a bilateral hearing loss disability. Thus, the question as to hearing loss is whether it was caused or aggravated by service. The Veteran’s service treatment records include the February 1974 Report of Medical Examination at entrance into active service, which shows the Veteran auditory thresholds as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 10 35 45 LEFT 15 20 50 45 At the time of his February 1978 separation examination, the Veteran’s bilateral auditory thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 10 40 40 LEFT 10 20 50 40 The clinical records during service show several additional audiograms, with similar readings. The October 2012 VA examiner reviewed the claims file and noted the Veteran’s in-service noise exposure from working in a boiler room and from firing weapons. He also noted post-service occupational noise exposure of working in a machine shop/metal fabrication for most of his life, sometimes with or without hearing protection. The Veteran denied any recreational noise exposure or ear surgery. Based upon the Veteran’s hearing at the entrance and separation examination, the examiner determined that the Veteran’s bilateral hearing loss was present at the time he entered service and there was no shift in hearing loss during his period of active service. Therefore, his current hearing loss is not caused by or a result of any shift in hearing, an event or by the Veteran’s MOS in service. The examiner stated the Veteran’s pre-existing hearing loss was not aggravated beyond normal progression in the military. Given the notation on entrance into active service of bilateral hearing loss, the presumption of soundness and aggravation do not apply in this case, and the question simply becomes whether the hearing loss that pre-existed service underwent an increase in severity (was aggravated) during service. Given the findings within the service treatment records, coupled with the VA examiner’s confirmation, the Board also finds the Veteran’s bilateral hearing did not shift or worsen during his active service. There is, therefore, no basis upon which a finding can be made that the Veteran’s preexisting hearing loss was aggravated by his active service. Thus, the Board finds service connection for bilateral hearing loss must be denied. In reaching this decision, the Board has also considered the Veteran’s own statements and his belief that he did not have hearing loss prior to service and that it manifested in active service. While the Veteran might sincerely believe that to be the case, the service hearing tests show otherwise, and the Board considers the audiometer test results of much greater value on this question, given the purpose of those tests and that they were generated contemporaneous with the events they record. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim for service connection for bilateral hearing loss. REASONS FOR REMAND Entitlement to service connection for DM II, to include as a result of exposure to herbicide agents The Veteran contends that his DM II is due to his in-service exposure to herbicides agents. Additional development is required. Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the Republic of Vietnam” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. The Board notes that DM II is included in the list of diseases covered by the regulation. 38 C.F.R. § 3.309(e). In support of his claim, the Veteran stated he was stationed on the USS Denver and participated in Operation Frequent Wind, an evacuation of refugees from Vietnam. The Veteran testified while he never had “boots on the ground,” he was close enough to see land. Military personnel records indicate the Veteran was aboard the USS Denver from September 1974 to July 1977. Upon review, the Board finds that remand is required to attempt to verify the Veteran’s reported herbicide agent exposure. The matters are REMANDED for the following action: 1. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam in light of the Federal Circuit’s holding in Procopio. Such action may include obtaining and reviewing the deck logs of the USS Denver in order to ascertain its whereabouts while the Veteran served aboard the ship, conducting an inquiry with the JSRRC, and any other development deemed appropriate. Any development on remand should address whether the USS Denver served within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed with the ship during the appropriate time period. All requests and responses should be associated with the claims file. The results of this development should be outlined in a memorandum for the record, including whether these records support exposure to herbicide agents during the indicated periods of active service. (Continued on the next page)   2. After undertaking any additional development as may become necessary by the receipt of additional evidence, re-adjudicate the claim. If the determination remains adverse to the Veteran, he should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.