Citation Nr: A20007338 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191021-39147 DATE: April 30, 2020 ORDER Readjudication of the claim for entitlement to service connection for bilateral hearing loss is warranted. Readjudication of the claim for entitlement to service connection for tinnitus is warranted Service connection for tinnitus is granted. Entitlement to an initial compensable rating for asbestosis is denied. REMANDED Service connection for sleep apnea is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. New evidence was received after the June 2009 denial that is relevant to the issue of entitlement to service connection for bilateral hearing loss. 2. New evidence was received after the June 2009 denial that is relevant to the issue of entitlement to service connection for tinnitus. 3. Throughout the entire period on appeal, the evidence of record shows that the Veteran’s asbestosis has resulted in FVC greater than 80-percent predicted. 4. Resolving reasonable doubt in the Veteran’s favor, tinnitus is at least as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for bilateral hearing loss have been met. 38 C.F.R. § 3.156 (d). 2. The criteria for readjudicating the claim for service connection for tinnitus have been met. 38 C.F.R. § 3.156 (d). 3. The criteria for a compensable disability rating for service-connected asbestosis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6833. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the rating decisions on appeal were issued in October 2019. In October 2019 and December 2019, the Veteran elected the direct review under the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (38 C.F.R. § 19.2(d)). The Veteran had active service from December 1971 to May 1977. 1. Whether new and relevant evidence was presented to warrant readjudicating the claims of entitlement to service connection for bilateral hearing loss and service connection for tinnitus The Veteran contends that he submitted evidence to reopen his claims for service connection for bilateral hearing loss and service connection for tinnitus that is new and relevant and warrants readjudication of the issues. The Veteran’s claims for service connection for bilateral hearing loss and service connection for tinnitus were initially denied by a June 2009 rating decision. The Veteran did not submit a notice of disagreement for his claims; therefore, the June 2009 rating decision, in which the RO denied service connection for a bilateral hearing loss and service connection for tinnitus, is final. 38 U.S.C. § 7105. The basis for the denial was that there was no evidence that the conditions occurred in service or were caused by active service. VA will readjudicate a claim if new and relevant evidenced is presented or secured. Id. “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 84 Fed. Reg. 138, 172 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501(a)(1)). Since the last prior final decision, lay evidence and medical evidence have been added to the record. VA treatment records established that the Veteran has been diagnosed with bilateral hearing loss for VA purposes and tinnitus during the appeal period. In May 2019, the Veteran stated that he was never exposed to loud noises prior to his military service. He reported constant noise exposure during service from large turbines and engines. Also, he was not issues hearing protection during his active service. During a February 2011 VA audiology consultation, the Veteran reported bilateral hearing loss with an extensive history of unprotected noise exposure. The reason for the prior final denial was that there was no evidence establishing the Veteran’s bilateral hearing loss or tinnitus occurred in, or was caused by, his active service. In other words, the in-service occurrence and nexus elements were missing. The Board finds the Veteran submitted new evidence after the prior final rating decision in the legacy system that is relevant to his claims. This recent evidence indicates a current diagnosis of bilateral hearing loss and tinnitus and that it may be related to his in-service noise exposure. Therefore, the claim of entitlement to service connection for bilateral hearing loss and service connection for tinnitus are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Organic diseases of the nervous system such as tinnitus will be presumed to have been incurred in or aggravated by service if such become manifest to a degree of 10 percent or more within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is due to in-service acoustic trauma. With regard to the first element of service connection, as reflected in the September 2019 VA examination report, the Veteran has a current diagnosis of recurrent tinnitus. As for the second element of service connection, the Board notes that the Veteran’s service treatment records (STRs) note a complaint of bilateral ear pain after working by the evaporator. See July 1974 STR. The Veteran’s military occupational specialty was that of a machinist’s mate, and the agency of original jurisdiction has conceded that the Veteran was likely exposed to high levels of noise in service. During his September 2019 VA examination, the Veteran noted that he was exposed to loud noises from high pressure steam turbines, electric generators, pumps, evaporators, and limited weapons training without hearing protection. He noticed his tinnitus after his active service when working in an office setting. In May 2019, the Veteran noted that he was never exposed to hazardous noise levels prior to his active service. While stationed on the ship, the Veteran was constantly exposed to motor noise and pump noise that caused tinnitus in both ears. As for the Veteran’s lay statements with regard to the onset of his tinnitus, the nature of his symptoms, and the circumstances of his in-service and post-service noise exposure the Board finds that such statements are both competent and credible. As noted by the United States Court of Appeals for Veterans Claims (Court), VA has acknowledged that “tinnitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss,” and that “acoustic trauma is the most common cause of tinnitus.” See Fountain v. McDonald, 27 Vet. App. 258, 267 (2015) (citing U.S. Dep’t of Veterans Affairs, Veterans Benefits Admin., Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus (2010)). As for onset of the Veteran’s tinnitus symptoms, the Board finds that the Veteran is competent to report the onset of his tinnitus symptoms and the nature of his in-service and post-service noise exposure because such subjects pertain to factual observations that are directly within the Veteran’s ability to experience, remember, and describe. Additionally, all of the Veteran’s statements with regard to noise exposure onset and his tinnitus symptoms are credible, because they are corroborated by his personnel records, consistent with the nature of his service, and there is no persuasive evidence in the claims file that negates, undermines, or otherwise contradicts the substance of his lay statements. Accordingly, the Board finds that there is sufficient evidence to meet the first two elements of service connection because there is evidence of a current diagnosis of tinnitus and an in-service cause or event for this condition. However, with regard to the third and final element of service connection, the Board must first address the negative etiology opinion provided by the September 2019 VA examiner. The Board notes that the examiner concluded that the Veteran’s tinnitus was not caused by acoustic trauma in service on the bases that the Veteran had normal hearing for VA purposes at the time of the examination, there was no evidence of permanent hearing loss during service, and the Veteran reported onset of his tinnitus approximately 10 years after service. However, this fails to acknowledge that acoustic trauma in and of itself can cause tinnitus, and that acoustic trauma is the most common cause of tinnitus. See Fountain, 27 Vet. App. at 267 (citing U.S. Dep’t of Veterans Affairs, Veterans Benefits Admin., Training Letter 10-02, Adjudicating Claims for Hearing Loss and/or Tinnitus (2010)). Therefore, the Board finds that the negative etiology opinion provided by the VA examiner is of limited probative value. In June 2009 a contract examiner diagnosed the Veteran with bilateral tinnitus and opined that the military noise exposure was a probable cause of the Veteran’s tinnitus. He opined that the Veteran’s tinnitus was at least as likely as not related to military service as the history od exposure to acoustic trauma during active service was consistent with the examination findings. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran has consistently reported loud noise exposure during his naval service. For the foregoing reasons, in light of the medical and lay evidence of record and affording the Veteran the benefit-of-the-doubt, as required by VA law and regulations, and in affording a heightened duty to assist, the Board finds that service connection for tinnitus is warranted. 3. Entitlement to an initial compensable rating for service-connected asbestosis The Veteran seeks an initial compensable rating for service-connected asbestosis. Service connection for asbestosis was granted in an October 2019 rating decision with a noncompensable rating effective May 30, 2019. After review of the evidentiary record, the Board finds entitlement to an initial compensable rating for service-connected asbestosis is not warranted. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s asbestosis has been rated as noncompensable pursuant to Diagnostic Code 6833. This code is rated under the general rating formula for interstitial lung disease. The general rating formula provides for a 10 percent disability rating where the evidence shows Forced Vital Capacity (FVC) in 1 second of 75 to 80 percent predicted; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. A 30 percent rating is warranted with FVC of 65 to 74 percent; or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation requires FVC of 50 to 64 percent predicted; or DLCO (SB) of 40 to 55 percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent evaluation requires demonstrated evidence of an FVC of less than 50 percent of predicted value; or DLCO (SB) of less than 40 percent of predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiac or respiratory limitation; or cor pulmonale (right heart failure) or pulmonary hypertension or requires outpatient oxygen therapy. When evaluating based on PFT’s, the post-bronchodilator results must be used in applying the evaluation criteria, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96 (d)(4). In that case, the General Rating formula mandates use of the pre-bronchodilator results for rating purposes. 38 C.F.R. § 4.96 Note 5. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). Where there is a disparity between the results of the various pulmonary function test results, the test result that an examiner states most accurately reflects the claimant’s level of disability is to be used. 38 C.F.R. § 4.96 (d)(6). The Veteran underwent a VA examination in September 2019. The examiner noted the Veteran’s pre-bronchodilator results were normal such that post-bronchodilator testing was not completed. The examiner further noted that the FVC percentage most accurately reflects the Veteran’s level of disability. The pre-bronchodilator results were noted as FVC at 86 percent predicted, FEV-1 at 87 percent predicted, and FEV-1/FVC at 76 percent. The examiner then noted that DLCO (SB) was not completed as the facility was not equipped to perform DLCO testing. The examiner also reported that the Veteran’s respiratory condition does not require the use of oral or parenteral corticosteroid medications oral bronchodilators, antibiotics or outpatient oxygen therapy. The Veteran’s respiratory condition required intermittent inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. A March 2018 chest X-ray showed normal heart size and no pulmonary vascular congestion or pleural effusion. There were scattered areas of calcified pleural scarring. The lungs were free of acute infiltrate. On his December 2019 notice of disagreement, the Veteran asserted that he should have a compensable rating for his service-connected asbestosis as he daily used an inhaler to treat his condition. The Board finds that the preponderance of the evidence of record does not support a finding that the Veteran’s asbestosis meets the criteria for a compensable rating under Diagnostic Code 6833. To receive a higher evaluation, there must be FVC or DLCO (SB) less than 80-percent predicted. At no time during the appeal period has FVC been between 75 and 80 percent predicted or DLCO between 66 to 80 percent predicted. Thus, a compensable rating for asbestosis is not warranted at any time during the period on appeal. The Board has considered whether staged ratings are warranted for the Veteran’s service-connected asbestosis; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Fenderson, 12 Vet. App. at 126. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Service connection for sleep apnea is remanded The Veteran contends that his sleep apnea is secondary to, or aggravated by, his service-connected asbestosis. See December 2019 notice of disagreement. The September 2019 VA examiner opined that the Veteran’s sleep apnea was not caused by his active service; however, the examiner did not address whether the Veteran’s service-connected asbestosis caused or aggravated his sleep apnea. Consequently, the Board finds that an additional opinion is necessary to guide the Board in its adjudication. 4. Service connection for bilateral hearing loss is remanded The Veteran contends that his bilateral hearing loss is related to acoustic trauma during his service. The Veteran reported acoustic trauma from large turbines, engines, and loud equipment in the machine shop during his military service. In September 2019 the Veteran underwent a VA examination for hearing loss. The VA audiogram revealed bilateral ear hearing loss per 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with sensorineural hearing loss of the bilateral ears in the frequency range of 500 to 4000 Hertz. The VA examiner opined that the Veteran’s bilateral hearing loss was less likely not caused by or a result of military service as audiometric testing at the time of enlistment and discharge revealed normal hearing of the bilateral ears with no changes in hearing thresholds/significant thresholds shifts compared to the entrance examination. The rationale deficiency with the September 2019 VA audiological examination is that the examiner relied on the absence of hearing loss disability in service for the negative service connection opinion. The Board notes that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for a hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection is warranted if all of the evidence, including that pertinent to service, reflects that current hearing loss is related to in-service noise exposure or anything else in service. The negative opinion is inadequate because the examiner appeared to have relied solely on the lack of hearing loss during service. Based on the above, the Board finds that a medical addendum should be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. Based on a review of the record, and any examination/medical findings, the examiner should provide an opinion as to whether: (a.) It is at least as likely as not (50 percent probability or greater) that sleep apnea is proximately due to, or the result of, the Veteran’s service-connected asbestosis. (b.) It is at least as likely as not (50 percent probability or greater) that sleep apnea is aggravated beyond the natural progress of the disease by the Veteran’s service-connected asbestosis. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain a VA addendum opinion pertaining to the Veteran’s bilateral hearing loss from the September 2019 examiner, or a similarly qualified individual. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran’s separation from active service. The examiner must address the Veteran’s assertions of diminished hearing loss since service, to include any post-service noise exposure; and, address the Veteran’s in-service military occupational specialty and the corresponding level of noise exposure. A complete rationale must be provided. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: The Veteran’s numerous assertions of diminished hearing loss since service due to loud generators, turbines, and large ship equipment. (Continued on the next page) In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. 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. The examiner must provide a complete rationale for all proffered opinions. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.