Citation Nr: 21062306 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-03 724 DATE: October 6, 2021 ORDER Entitlement to service connection for residual lung scarring due to pneumonia is granted. Entitlement to a compensable rating for right ear hearing loss is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease is remanded. FINDINGS OF FACT 1. The Veteran's lung scarring is a residual of the pneumonia he had while on active duty. 2. At all times during the pendency of the appeal, the audiometric test results obtained during examination by a VA audiologist correspond to a numeric designation of no greater than VI in the service-connected right ear and I in the nonservice-connected left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for residual lung scarring due to pneumonia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for right ear hearing loss have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1154(a), 1155, 1160, 5107(b); 38 C.F.R. §§ 3.102, 3.383, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1966 to September 1968. In February 2020, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that, among other things, denied service connection for lung scarring as a residual of the pneumonia the Veteran had while on active duty as well as remanded claims of service connection for chronic obstructive pulmonary disease and allergic rhinitis and for a compensable evaluation for right ear hearing loss. As to the claim of service connection for lung scarring as a residual of the pneumonia the Veteran had while on active duty, the Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent March 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's denial of this issue. As to the remanded claims, in a June 2020 rating decision the regional office (RO) granted service connection for allergic rhinitis. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). As to the claim for a compensable rating for right ear hearing loss, the Board finds that there was substantial compliance with the Remand. The Board has reached this conclusion because it finds that the VA examination obtained in November 2020 provides all needed information to rate his disability under all applicable rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-remand development substantially complied with the Remand because while this issue was at the RO all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with new VA examinations or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Service Connection Claim The Veteran claims that he has lung scarring as a residual of the pneumonia he had while on active duty. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to an in-service disease or injury, service treatment records document the Veteran's complaints and treatment for pneumonia in April 2017. Therefore, the Board finds that the Veteran had had a disease or injury while on active duty as required by Hickson, supra. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Therefore, the Board finds that the remaining questions for it to consider are whether the Veteran has a current disability and, if so, is there a medical evidence of a nexus between the above in-service disease and the current disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hickson, supra. In this regard, the Board notes that the December 2015 VA examiner stated that Veteran's in-service pneumonia resolved with treatment and without known sequalae. On the other hand, and as noted in the JMPR, in the November 2019 private Disability Benefits Questionnaire (DBQ) it was opined that the Veteran had scar tissue around the lung that was "more than likely from previous severe pneumonia he suffered while on active duty." Tellingly, the December 2015 VA examiner's opinion and the November 2019 DBQ opinion appear to be based on the same evidence. Therefore, the Board finds that the evidence, both positive and negative, is at least in equipoise. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the Veteran has a current disability (i.e., lung scar tissue) due to an in-service injury (i.e., pneumonia). See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303; see also Gilbert, supra; McClain, supra; Hickson, supra. Therefore, the Board concludes service connection is warranted for the lung scarring because it is a residual of the pneumonia the Veteran had while on active duty and the claim is granted. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Rating Claim The Veteran asserts that his right ear hearing loss meets the criteria for at least a compensable rating at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 right ear hearing loss is rated as noncompensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc... When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I unless the service-connected hearing loss is at least 10 percent disabling and there is hearing impairment in the non service-connected ear under 38 C.F.R. § 3.385. 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f). With the above criteria in mind, the Board notes that at the September 2015 VA examination the Veteran had puretone thresholds of 20, 60, 60, and 70 decibels in the service-connected right ear and puretone thresholds of 15, 65, 60, and 70 decibels in the nonservice-connected left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 53 decibels in the service-connected right ear and 53 decibels in the nonservice-connected left ear. Speech recognition ability was 84 percent in the service-connected right ear and 80 percent in the nonservice-connected left ear left ear. As the hearing loss's functional impact, the Veteran reported that he cannot hear very well and needs repetition of speech as well as has difficulty hearing on the phone and speech on the tv. Subsequently, at the November 2020 VA examination the Veteran had puretone thresholds of 40, 70, 70, and 75 decibels in the service-connected right ear and puretone thresholds of 50, 75, 70, and 75 decibels in the nonservice-connected left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 64 decibels in the service-connected right ear and 68 decibels in the nonservice-connected left ear. Speech recognition ability was 66 percent in the service-connected right ear and 68 percent in the nonservice-connected left ear left ear. As the hearing loss's functional impact, the Veteran reported that he has difficulty hearing and understanding people speaking, especially when background noise is present such as in a crowd or a meeting. The Board also notes that treatment records document the Veteran's periodic complaints and treatment for right ear hearing loss. However, the Board finds that nothing in these treatment records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). This finding does not suggest that the Veteran does not have a hearing problem, simply that this problem may not be compensable under VA law. With application of the above audiological test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's service-connected right ear hearing loss at the September 2015 VA examination is assigned a numeric designation of II and at the November 2020 VA examination is assigned a numeric designation of VI and the nonservice-connected left ear hearing loss is assigned a numeric designation of I at both examinations because the right ear hearing loss standing alone does not meet the criteria for a 10 percent rating at either of the above VA examinations (see 38 U.S.C. § 1160(a)(3); 38 C.F.R. §§ 3.383(a)(3), 4.85(f)). These test scores do not show that the Veteran met the criteria for a compensable rating for his right ear hearing loss at any times during the pendency. Therefore, the Board finds that the claim for a compensable rating for his service-connected right ear hearing loss is denied under Table VII at all times during the pendency. See 38 C.F.R. § 4.85, Diagnostic Code 6100; Fenderson, supra. As to 38 C.F.R. § 4.86(a), at the above examination the Veteran did not have thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz). Consequently, 38 C.F.R. § 4.86(a) is not for application at all times during the pendency. See Fenderson, supra. As to 38 C.F.R. § 4.86(b), at the above examination the Veteran did not have thresholds of 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. Consequently, 38 C.F.R. § 4.86(b) is not for application at all times during the pendency. See Fenderson, supra. In reaching this conclusion, the Board has also not overlooked the various lay statements found in the record. However, while the Veteran is competent to report on what he can see and feel and others are competent and credible to report on what they can see, the Board finds more probative the opinions provided by the medical expert at the VA examination as to the severity of his right ear hearing loss than his lay claims. See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). While the Veteran may have issues with his hearing, the question is whether it meets a certain level of disability in order to obtain compensation. Nothing more. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for chronic obstructive pulmonary disease is remanded. As to the claim of service connection for chronic obstructive pulmonary disease, the record on appeal confirms the Veteran's diagnosis of chronic obstructive pulmonary disease. Moreover, the Board in the above decision granted the Veteran service connection for the lung scarring caused by his in-service pneumonia. Likewise, the record shows that the RO recently granted the Veteran service connection for sleep apnea. Therefore, the Board finds that another Remand is needed to obtain, for the first time, a medical opinion as to whether the Veteran's chronic obstructive pulmonary disease is caused or aggravated by his newly service-connected lung scarring and/or sleep apnea. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, when providing the secondary nexus opinion, the examiner should be award of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) recently redefined aggravation to include temporary flare-ups. While this issue is in remand status, the RO should also be obtained and associated with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his chronic obstructive pulmonary disease. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that chronic obstructive pulmonary disease is due to a disease or injury while on active duty. b. Provide an opinion as to whether chronic obstructive pulmonary disease manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic obstructive pulmonary disease was caused by his service-connected lung scarring and/or sleep apnea. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic obstructive pulmonary disease was aggravated by his service-connected lung scarring and/or sleep apnea. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner cannot rely solely on negative evidence. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. (Continued on the next page) However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.