Citation Nr: 21002334 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-46 138 DATE: January 13, 2021 ORDER Entitlement to service-connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. Bilateral hearing loss, for VA purposes, was not shown during active service and did not manifest to a compensable degree within one year of active service; and the evidence does not credibly show continuity of symptomatology since active service. 2. Resolving all reasonable doubt in favor of the Veteran, his tinnitus was incurred in and is etiologically related to active duty service. 3. COPD did not manifest during service and is not casually related to active service to include as due to any exposure to asbestos or herbicides. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Navy from August 1963 to October 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the claim for development, including new VA examinations. See BVA Decision received April 2019. However, the Veteran failed to respond to requests to set up new examinations. See VA 21-2507a Request for Physical Examination received October 2019 and November 2019. After a Supplemental Statement of the Case (SSOC), the claims were returned to the Board. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Hearing loss and tinnitus are considered chronic diseases under 38 C.F.R. § 3.309(a) because these conditions are organic disorders of the nervous system. For these chronic diseases to be presumed service-connected, under this provision, they must manifest to a degree of 10 percent within one year from date of termination of such service. See 38 C.F.R. § 3.307(a)(3). COPD is not included in the diseases listed in 38 C.F.R. § 3.309(e). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service-connection for bilateral hearing loss is denied The Veteran contends that he is entitled to service connection for bilateral hearing loss. He reported that his hearing loss was caused by his service in the Navy. See VA 21-526EZ, Fully Developed Claim (Compensation) received August 2011. He worked as a machinist mate in an engine room and boiler room aboard a Navy ship. Id. He stated that he was exposed to loud noises daily while in the Navy. See NOD received August 2014. First, the Board has considered whether service connection was warranted on a presumptive basis. In particular, the Board considered whether any evidence supported that the Veteran’s hearing loss began in service or that the Veteran’s hearing loss began within a year of discharge from service. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, and 5 at 4000 Hz. The Veteran’s service treatment records indicate that audiometric testing was conducted on an enlistment examination in August 1963. As this evaluation was conducted prior to October 1967, the Board has converted the ASA units to ISO-ANSI units. The Veteran’s reported Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 30 LEFT 20 15 15 10 5 On enlistment, the Veteran was noted with defective hearing but for VA purposes his hearing abnormality was not at the level that is considered a disability. See STR-Medical received November 2011. Specifically, the Veteran did not have 40 decibels or greater auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) or 26 decibels or greater in at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz. See 38 C.F.R. § 3.385. At discharge, the Veteran does not appear to have had a full audiometric hearing test. In the Veteran’s separation Report of Medical Examination, he had a whisper test showing 15/15 and defective hearing was not reported. Id. The Veteran reported that all his medical treatment and testing for hearing loss was with the VA. See VA 21-4138, Statement in Support of Claim received October 2011. The Veteran’s records do not show hearing loss treatment until decades after military service. So, hearing loss for VA purposes is not shown in service or to the degree of 10 percent within one year from the date of his service by any competent evidence of record. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, the evidence does not show a continuity of symptoms since service. For example, in January 2011, the Veteran had an audiological evaluation. He reported a failed truck driver hearing test and onset within the last two to three years. He reported noise exposure in the military including work on machinery in an engine room. After the military, the Veteran was a truck driver and he had some work in construction. See CAPRI received September 2011. In January 2011, the examiner reported that the Veteran had moderate to severe sensorineural hearing loss in the right ear at 1500 Hz to 8000 Hz with good work recognition, and mild to severe sensorineural hearing loss at 250 Hz to 8000 Hz with good word recognition. During the test, the examiner could not perform a seal for a tympanometry. The VA ordered hearing aids for the Veteran. Then in February 2011, the Veteran received his hearing aids. The Veteran was not a previous hearing aid user. Id. The Board notes that the Veteran separated from service in October 1968, and the Veteran’s treatment for hearing loss began decades later. The Veteran only reported treatment with the VA for his hearing loss and the evidence of VA treatment does not show continuity of symptomatology for decades after service. Therefore, a continuity of symptoms since service is not shown. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship (“nexus”) between the Veteran’s present hearing loss and an in-service event, injury, or disease. In addressing the direct service connection test, the Board notes that the Veteran’s current level of hearing loss is unclear. The Veteran’s treatment records reflect a present diagnosis of sensorineural hearing loss with corresponding use of hearing aids, discussed above. See CAPRI received September 2011. In September 2013, the Veteran had an audiological VA examination, but the examiner was not able to obtain Puretone test results or speech discrimination scores. The examiner found that testing results were unreliable. The examiner noted that the Veteran’s Puretone thresholds did not reflect and were not in agreement with his behavioral responses. See VA Examination received September 2013. While the VA tried to schedule the Veteran for another audiological VA examination, the Veteran failed to respond to the attempt to schedule the examination. See VA 21-2507a Request for Physical Examination received October 2019 and November 2019. As to direct service connection, the evidence supports a finding of in-service acoustic trauma based on the Veteran’s verified military occupational specialty (MOS) as a Marine Mechanic and Machinist on ship and boat. See DD Forms 214. The Veteran also reported that he was exposed to louds sounds daily while working in a ship engine room. See NOD received August 2014. Therefore, an in-service event is supported by the Veteran’s record of service. However, for direct service connection, there must be a causal relationship (“nexus”) between the present disability and the in-service event, and the evidence of record does not support a link between the Veteran’s present hearing loss and in-service acoustic trauma. In September 2013, the Veteran was afforded a VA examination. The examiner noted that they had no doubt that the Veteran had hearing loss but that the testing performed could not accurately gauge the level due to apparent reluctance on the Veteran’s part to respond. The examiner noted that the Veteran’s history would support some degree of hearing loss due to military service as his MOS is one of high probability to noise exposure. However, the examiner was unable to determine the degree of the Veteran’s hearing loss or the etiology. See VA Examination received September 2013. As noted above, the Veteran did not respond to the attempt to schedule a new audiological VA examination. See VA 21-2507a Request for Physical Examination received October 2019 and November 2019. While the VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran or appellant also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board recognizes that the Veteran might sincerely believe that his hearing loss was caused by his service. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation and require medical expertise. Accordingly, his opinion as to the diagnosis or etiology of his hearing loss is not competent medical evidence. Thus, the Veteran’s own opinion about the etiology of his current hearing loss is not competent medical evidence. The Board finds no other opinions are available in the record to support a causal relationship (“nexus”) between the present disability and the in-service event. Overall, the Board finds that a connection between the Veteran’s hearing loss and military service, is not well supported. Neither the Veteran nor his representative has raised any other duty to notify or duty to assist issues regarding the Veteran’s hearing loss claim denied herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that the preponderance of the evidence of record weighs against the establishment of a connection (nexus) between the Veteran’s hearing loss and active duty service. Given the extensive time between active duty service and the diagnosis of bilateral hearing loss, as well as considering all of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against service-connection for the Veteran’s hearing loss. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for bilateral hearing loss must be denied. 2. Entitlement to service-connection for tinnitus is granted. In this case, the Veteran seeks entitlement to service connection for tinnitus. He primarily contends that he worked in a loud engine room on a Navy ship and that he was exposed to loud noises. See NOD received August 2014. The Veteran reported that his symptoms of tinnitus started in service. See VA Examination received September 2013. First, in the VA examination in September 2013, the Veteran competently and credibly reported tinnitus since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a lay person is capable of observing tinnitus). Thus, the first element of service connection has been met. Second, the evidence supports a finding of in-service acoustic trauma based on the Veteran’s verified military occupational specialty (MOS) as a Marine Mechanic and Machinist on a ship and boat. See DD Forms 214. The Veteran also reported that he was exposed to louds sounds daily while working in a ship engine room. See NOD received August 2014. Therefore, an in-service event is supported by the Veteran’s record of service. The Board finds that the Veteran competently and credibly reported continuous tinnitus symptoms since service. During the September 2013 VA Examination the Veteran reported tinnitus since service in the military. See VA Examination received September 2013. While there is an absence of complaints of or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in the Veteran’s favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board recognizes the September 2013 VA audiological examination did not provide an opinion as to whether the Veteran’s tinnitus was caused by or a result of noise exposure in the military service. See VA Examination received September 2013. However, the Board does not need a medical opinion to support service connection for the Veteran’s tinnitus because service connection may be granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of tinnitus (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of tinnitus since service rather than on direct service connection. 3. Entitlement to service connection for COPD The Veteran contends that his lung condition, COPD, is causally related to active service, to include as due to exposure to asbestos while working in the engine room of a Navy ship. He stated that he worked with asbestos wrapped steam pipes. The Veteran also reported that he was exposed to agent orange during service in the Vietnam War. See VA 21-4138 Statement in Support of Claim received October 2011, and NOD received May 2014 and August 2014. First, the Board notes that COPD is not included in the diseases listed in 38 C.F.R. § 3.309(e). Therefore, the presumption of service connection due to herbicide exposure is not warranted. Next, the Board considered direct service connection. As to direct service connection, the Veteran has a current disability. The Veteran has been diagnosed with and treated for COPD, during the course of the appeal. For example, in July 2012, the Veteran had pulmonary function testing consistent with a diagnosis of severe obstructive lung disease, COPD. See Medical Treatment Record-Government Facility received March 2015. Thus, the first element of direct service connection has been met. The Board noted that in March 2014, the Veteran had a chest x-ray showing some scarring possibly related to past asbestos exposure. See CAPRI records received June 2016. However, the Veteran was also a smoker for many years. Id. As to direct service connection, the Veteran reported that he worked on and around asbestos on a Navy ship. He also reported that he was exposed to herbicide agents in the Vietnam War. Even if the Board finds that the second element of an in-service incurrence has been met, there is still no competent evidence to support a link (“nexus”) between the present disability and the in-service event. The VA tried to set up a pulmonary VA examination. However, the Veteran did not respond to the attempt to schedule the examination. See VA 21-2507a Request for Physical Examination received October 2019 and November 2019. While the VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran or appellant also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board recognizes that the Veteran might sincerely believe that his COPD was caused by his service. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of COPD is a matter not capable of lay observation and requires medical expertise. Accordingly, the Veteran’s own opinion as to the diagnosis or etiology of his lung disability is not competent medical evidence. The Board finds no other opinions are available in the record to support a causal relationship (“nexus”) between the present disability and the in-service event. In sum, the Veteran’s COPD did not manifest during service, but rather manifested several decades after separation from service. The record is silent for any competent evidence of a link between the Veteran’s service and the Veteran’s current disability. Therefore, upon review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for the Veteran’s COPD. As the preponderance of the evidence is against the claim for service connection for COPD, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. The claim of entitlement to service connection for a lung disability (COPD) must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.