Citation Nr: 21001094 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-30 040 DATE: January 7, 2021 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. REMANDED Entitlement to compensation for obstructive sleep apnea (OSA) pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for claudication, claimed as a walking condition, pursuant to 38 U.S.C. § 1151 is remanded. Entitlement to compensation for an acquired psychiatric disability, to include generalized anxiety disorder, pursuant to 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. The Veteran’s currently diagnosed bilateral sensorineural hearing loss did not have onset during service and is not related to service. 2. The Veteran’s tinnitus did not have onset during service and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to July 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the April 2014 decision, the RO denied entitlement to service connection for tinnitus and bilateral hearing loss. In July 2014, VA received the Veteran’s Notice of Disagreement (NOD) with the April 2014 rating decision. In April 2017, the RO issued a Statement of the Case (SOC). In the June 2015 decision, the RO denied compensation for sleep apnea claimed as a sleeping condition, a respiratory condition also claimed as wheezing and difficulty breathing, claudication claimed as a walking condition, and anxiety also claimed as stress under 38 U.S.C. § 1151. In June 2015, VA received the Veteran’s NOD. In April 2017, the RO issued a SOC; however, the April 2017 SOC did not address the issue of anxiety. In June 2017, VA received the Veteran’s Form 9 appealing the issues addressed in both April 2017 SOCs. In February 2018, the RO issued a SOC addressing the anxiety claim. In April 2018, VA received the Veteran’s VA Form 9 appealing the issue of entitlement to compensation for anxiety pursuant to 38 U.S.C. § 1151, to the Board. In November 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. At the outset, the issue of compensation for anxiety has been expanded to include all of the Veteran’s diagnosed acquired psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran asserts that his bilateral hearing loss disability and tinnitus are related to noise exposure during active service. Specifically, he contends that during basic training, he participated in a firing exercise without hearing protection. During the exercise, the Veteran felt one ear pop and was removed from the shooting line; the next day, he was sent to a clinic. He claims to have experienced “constant” hearing loss and “on and off” tinnitus since service. See November 2020 Board hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).  Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As noted above, the Veteran claims to have developed hearing loss and tinnitus following acoustic trauma incurred during an in-service firing exercise and to have experienced hearing loss and tinnitus symptomatology from service to the present. When considering the credibility of lay evidence, the Board may consider internal consistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran’s DD Form 214 gives his military occupational specialty (MOS) as decontamination specialist. Although the Veteran’s MOS is not notable for a high probability of noise exposure, during service, the Veteran reported exposure to noise from “explosives, gunfire, and grenade noise.” March 2014 VA examination report. Furthermore, he was awarded a U.S. Army Sharpshooter Badge. See DD Form 214. Therefore, his alleged noise exposure to firearms is consistent with the circumstances of his service. However, service treatment records (STRs) provide no evidence of a clinic visit for a suspected acoustic injury or any other acoustic symptomatology. Notably, both the Veteran’s entrance and separation examinations used a whisper test to assess hearing acuity. The whisper test results were normal at entrance and separation. However, it is well-established that a whisper voice test is not an accurate measure of hearing acuity. Nevertheless, the Veteran did not report ear trouble on a June 1965 Report of Medical History administered just prior to separation. See STRs dated June 10, 1965. There is no supporting lay or medical evidence of hearing loss or tinnitus for nearly 50 years after separation from service. Furthermore, during a January 2015 otolaryngology consultation, the Veteran reported “perhaps a 2 year [history] of bilateral hearing loss.” Otolaryngology consult dated January 26, 2015. Notwithstanding, the Veteran denied post-service occupational or recreational noise exposure. See March 2014 VA examination report. The Veteran received an initial VA examination for his bilateral hearing loss disability and tinnitus in March 2014. The puretone thresholds during the March 2014 VA examination are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 65 95 105+ Left 15 30 55 65 70 The Veteran’s speech discrimination results using the Maryland CNC word list were 64 percent for the right ear and 70 percent for the left ear. Based on the above findings, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Regarding the etiology of the Veteran’s hearing loss, the VA examiner concluded that she was unable to provide “a medical opinion regarding the etiology of the Veteran’s [bilateral] hearing loss without resorting to speculation.” She reasoned that during both entrance and separation examinations, the Veteran was administered a whisper test; furthermore, she noted that “the Whisper Live Voice test does not accurately evaluate hearing ability” because “the test is notoriously inaccurate, subjective, inconsistently administered, and insensitive to high-frequency hearing losses (the most typical loss that occurs following exposure to noise).” Without entrance or separation audiograms, the examiner was unable to “determine if a significant threshold shift occurred during service experience.” Finally, regarding the possibility of delayed onset hearing loss, she cited treatise evidence to show that there is “no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure.” The examiner also concluded that she was unable to “provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation.” Her rationale supporting the opinion was substantially identical to the rationale supporting the opinion on hearing loss. In the “Remarks” section of her report, the examiner noted that there was “no indication of conductive pathology and the right tympanogram was within normal limits”; however, she was “unable to visualize [the] right tympanic membrane due to significant amounts of cerumen present in the right ear,” which she theorized could have been responsible for “a significant decline in right ear hearing loss” within the past year. During the November 2020 Board hearing, the Veteran testified that he had recently received an MRI of his ear and was told by the MRI technician that his hearing loss was due “to loud explosion or by old age.” November 2020 Board hearing transcript. Following the November 2020 hearing, the Veteran submitted the MRI report. However, while the MRI report, dated September 2020, provided a diagnosis of asymmetric sensorineural hearing loss, there is no discussion in the report regarding the etiology of the Veteran’s hearing loss. Moreover, even if the MRI technician did, in fact, tell the Veteran that his hearing loss could have been due to a loud explosion, or noise exposure, that opinion is too speculative to provide a basis on which to grant service connection. Turning to the probative value of the March 2014 VA opinion, the following factors are considered when evaluating the probative value of medical opinions: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Although the examiner was unable to provide opinions regarding the etiology of the Veteran’s hearing loss and tinnitus, her conclusion is supported by a reasoned analysis of the available evidence. In her report, she documented the Veteran’s description of his in-service acoustic injury and noise exposure, noted his reports of continuity of hearing loss and tinnitus symptomatology from service, and examined the Veteran for evidence of a past acoustic injury – finding none. Finally, the examiner referenced treatise evidence weighing against the likelihood of delayed onset hearing loss and tinnitus. Given the above, although the examiner did not provide an opinion on the etiology of the Veteran’s hearing loss and tinnitus, her findings regarding the lack of physical evidence of an acoustic injury and low probability of delayed onset hearing loss and tinnitus following noise exposure are afforded some probative value. Regarding the September 2020 MRI report, as noted above, there is no indication of any opinion to the etiology of the Veteran’s hearing loss in the report. Nevertheless, to the extent that any opinion relayed to the Veteran following the September 2020 MRI is consistent with his November 2020 testimony before the Board, the opinion fails to provide the degree of certainty needed for medical nexus evidence and is afforded no probative value. Although the Veteran sincerely believes that his bilateral hearing loss and tinnitus are related to service, his opinion in this regard is not competent. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the Veteran’s bilateral hearing loss and tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diseases involve complex internal processes as opposed to external processes or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his/her opinion lacks probative value. Based on the foregoing, the preponderance of the evidence shows that the Veteran’s bilateral hearing loss disability and tinnitus did not have onset during and are not otherwise related to service. Specifically, there is no record of an acoustic injury or reports of hearing loss or tinnitus during service and no supporting lay or medical evidence of continuity of hearing loss and/or tinnitus symptomatology to the present. As noted above, the earliest medical evidence of hearing loss is dated approximately 50 years after service. As such, the Veteran’s reports of continuity of hearing loss and tinnitus symptoms since service are not consistent with the evidence of record. Furthermore, as discussed above, the Veteran was administered whisper tests at both entrance and separation and did not report either hearing loss or tinnitus at separation. In light of the above, any opinion linking current hearing loss to service would necessarily be purely speculative. In conclusion, because the preponderance of the evidence shows that the Veteran’s bilateral hearing loss disability and tinnitus are not related to service, the benefit of the doubt doctrine is not applicable to this case. Accordingly, service connection for a bilateral hearing loss disability and tinnitus are not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to compensation for OSA pursuant to 38 U.S.C. § 1151. 2. Entitlement to compensation for a respiratory disability, to include COPD, pursuant to 38 U.S.C. § 1151. 3. Entitlement to compensation for claudication, claimed as a walking condition, pursuant to 38 U.S.C. § 1151. 4. Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder, pursuant to 38 U.S.C. § 1151. The Veteran contends that he incurred additional disabilities, including OSA, a respiratory disability, to include COPD, claudication, and an acquired psychiatric disability, to include anxiety, following an August 1986 esophagogastrectomy performed by VA staff. Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The evidence must show that the proximate cause of the additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). The Court has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a “reasonable health care provider” would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). In determining that additional disability exists, the veteran’s physical condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services upon which the claim is based is compared to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). A claim based on additional disability due to medical treatment must meet the causation requirements. 38 C.F.R. § 3.361(c). To establish causation, the evidence must show that VA’s medical treatment resulted in additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, his or her representative’s informed consent. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). As noted above, the Veteran contends that his OSA, respiratory disability, claudication, and acquired psychiatric disability resulted from the negligence, carelessness, lack of proper skill and/or error in judgment by VA medical staff. Specifically, he asserts that VA medical staff failed to adequately advise him of possible complications prior to an August 1986 esophagogastrectomy. See August 1986 operative report. An August 1986 consent document is of record; it contains no discussion of possible complications of the procedure. See consent document dated August 8, 1986. During the operation, VA staff removed part of the Veteran’s esophagus, which was afflicted with a precancerous condition known as “Barrett’s esophagus.” The Veteran believes that “several inches” more of his esophagus than expected were removed during the procedure. Following the procedure, the Veteran developed recurrent aspirating pneumonia and a large hiatal hernia resulting in frequent vomiting and regurgitation, among other serious gastrointestinal symptoms. He believes that the procedure’s complications caused the development of OSA, a respiratory disability, claudication, and an acquired psychiatric disability. See November 2020 Board hearing transcript. Alternatively, the Veteran asserts that VA medical staff negligently failed to advise the Veteran of surgical options that could have significantly alleviated his symptoms. See July 2014 Veteran statement. In December 2013, the Veteran underwent surgery at a non-VA hospital for lysis of esophageal adhesions (destruction of scar tissue), reduction of the hernia, and prostetic reconstruction of a diaphragm defect. See operative report dated December 5, 2013. The Veteran reports that his condition has improved significantly following the surgery. See November 2020 Board hearing transcript. To date, VA has not provided a medical opinion for the Veteran’s claims under 38 U.S.C. § 1151. As no physical examination is required and due to the medically complex nature of the case at hand, a medical opinion may substitute for a physical in-person examination. In the opinion, the examiner must address the August 1986 operative report and consent document, VA treatment records (particularly those dated prior to the Veteran’s December 2013 surgery) private treatment records, and the Veteran’s lay statements contained in the November 2020 Board hearing testimony and July 2014 statement. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical specialist with respect to the Veteran’s claim for compensation pursuant to 38 U.S.C. § 1151 for development of additional disabilities, to include OSA, a respiratory disability, to include COPD, claudication, and an acquired psychiatric disability, to include anxiety, following an August 1986 esophagogastrectomy performed by VA. The electronic claims file, including a copy of this remand, must be made available to the medical specialist for review, and the medical specialist should indicate that the claims folder was reviewed. After reviewing the electronic claims file, including, but not limited to, this remand and the November 2020 hearing transcript, the medical specialist is asked to offer an opinion as to the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran has any additional disability as a result of a 1986 VA surgical procedure, to include OSA, a respiratory disability, claudication, and an acquired psychiatric disability, as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part or VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider. (b.) Whether it is at least as likely as not that any additional disability, to include OSA, a respiratory disability, claudication, and an acquired psychiatric disability, was due to an event not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The medical specialist should clearly explain and discuss the medical evidence and the medical principles involved for any opinions expressed. (Continued on the next page)   With regards to (a), the examiner should consider the November 2020 Board hearing testimony and July 2014 statement, the August 1986 operative report, VA treatment records dated prior to the Veteran’s December 2013 operation at a non-VA facility, and private treatment records. With regards to (b), the examiner should consider the November 2020 Board hearing testimony and July 2014 statement, the August 1986 operative report, and the August 1986 consent document. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.