Citation Nr: 21062537 Decision Date: 10/08/21 Archive Date: 10/07/21 DOCKET NO. 17-45 579 DATE: October 8, 2021 ORDER Entitlement to service connection for a respiratory disability, diagnosed as chronic obstructive pulmonary disease (COPD) and emphysema, claimed as residuals of pneumonia with breathing and lung problem, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for low back degenerative disc disease (DDD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that Veteran's current respiratory disabilities diagnosed as COPD and emphysema began during service or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's current bilateral hearing loss began during service or is otherwise related to an in-service injury or disease, to include inservice noise exposure. 3. The preponderance of the evidence is against finding that the Veteran's current tinnitus began during service or is otherwise related to an in-service injury or disease, to include inservice noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability, diagnosed as COPD and emphysema, are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.303 (2020). 2. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1968. This matter comes to the Board of Veterans Appeals (VA) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in March 2019 at which time the case was remanded for additional development; namely, to afford the Veteran VA examinations. There has been substantial compliance with the Board's March 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), 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.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307 (a), 3.309(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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. Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus related to service. Specifically, he asserts that he worked in a motor pool in service around trucks and other vehicles and used air tools without any type of hearing protection. The Veteran's service treatment records do not show complaints or findings of hearing loss or tinnitus. They include an August 1966 induction examination report showing audiometer findings of 10(15), 15(25), 15(25) and 15(20) decibels in the right ear and -5(10), 5(20), 5(20), and 15(20) decibels in the left ear at 500, 1000, 2000 and 4000 hertz, respectively. They also include an August 1966 Report of Medical History showing that the Veteran denied a history of hearing loss, although he did report a history of ear trouble which he described as "wax in ears". He subsequently denied a history of hearing loss as well as ear trouble on a Report of Medical History at separation in July 1968. Audiometer findings in July 1968 revealed 0(15), 0(10), 0(10) and 0(5) decibels in the right ear and 0(15), 0(10), 0(10), and 0 (5) decibels in the left ear at 500, 1000, 2000 and 4000 hertz, respectively. Regarding the audiological results above, as it relates to service department records, service department audiometric records were reported using standards set forth by the American Standards Association (ASA) prior to January 1, 1967. After December 31, 1970, however, military audiograms were recorded using International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, military audiograms dated before January 1967 must be converted from ASA to ISO-ANSI units prior to making findings related to a claimed hearing loss disability. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. The conversion for the August 1966 induction examination audiometric findings above is reflected in the parentheses. Moreover, for service department audiograms conducted between January 1, 1967, and December 31, 1970, it is unclear whether the thresholds were recorded using ASA or ISO-ANSI units. As such, data from the July 1968 separation audiogram has been considered under both standards, as set forth above, and the conversion to ISO-ANSI units is reflected in the parentheses. The first medical evidence of hearing impairment as defined by VA or tinnitus is decades after service when the Veteran underwent an authorized audiological evaluation in August 2016 and was found to have hearing impairment in his left ear. Notably, treatment records prior to this examination from Pinehurst Medical Clinic in December 2014 show that the Veteran denied having hearing loss or difficulty understanding speech. Audiological findings in August 2016 show pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 30 35 LEFT 10 10 5 25 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. As the August 2016 audiological results above show, the Veteran meets the criteria under § 3.385 for left ear hearing loss based on the puretone threshold level of 60 decibels at 4000 hertz. He does not meet the criteria for hearing loss in his right ear. Regarding a possible nexus between the Veteran's post-service left hearing loss and service, the August 2016 examiner opined that the Veteran's hearing impairment was not at least as likely as not (50% probability or greater) caused by or a result of an event in service. The examiner explained that the Veteran's separation record (DD Form 214) indicates that he was a supply clerk, which has low probability of noise exposure. He also noted that the Veteran's hearing levels were at 0 decibels at all frequencies bilaterally at the time of separation and that he had a longer history of working in noise outside of the military (33 years in factories) even with hearing protection, compared to one year and 11 months in the military. He also diagnosed the Veteran as having recurrent tinnitus and relayed the Veteran's report that he had ringing in his left ear that began several years earlier. He opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. He similarly reasoned that the Veteran's military occupational specialty (MOS) in service of supply clerk had a low probability of noise exposure and that he had a longer history of working in noise outside of the military (33 years in factories) even with hearing protection, compared to one year and 11 months in the military. In the Board's March 2019 remand, the Board requested that the Veteran be afforded a new audiological examination. This was in consideration of the Veteran's assertion that although his MOS was a supply clerk, he did not perform duties as a supply clerk, but rather he served as a guard in various capacities in addition to working in the motor pool where he was exposed to loud noise from vehicles and air tools. His service records confirm that he had assigned duties as a "Wh" vehicle mechanic, light truck driver and mechanical helper with the 246th Supply Company. The Veteran underwent a new audiological examination in November 2019 and was found to have hearing impairment as defined by VA in both ears based on his decibel levels at 4000 hertz. See 38 C.F.R. § 3.385. In this regard, audiological findings revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 35 40 LEFT 25 20 25 30 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. However, the November 2019 VA audiological examiner negated a nexus between the Veteran's post-service hearing loss and service. He explained that noise exposure does not always cause a noise injury and that in the Veteran's case there was no evidence of a noise injury in service. He said this was based on the evidence which does not show a significant hearing threshold shift in service. He cited to the results of a 2005 study from the Institute of Medicine entitled "Noise and Military Service - Implications for Hearing Loss and Tinnitus" (2005), which he said shows that there is insufficient scientific basis to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if there was no evidence of a noise injury immediately after the exposure. He pointed out that the Veteran did not complain of hearing loss or tinnitus in service and that his report at the examination of experiencing a 10 to 15-year history of hearing loss and tinnitus dates the onset of these disabilities to many years after service. He also noted that the first evidence of hearing loss was some 40 years after service, in 2016. He concluded by opining that in the absence of objective evidence of a hearing loss or a noise injury (i.e., significant threshold shift) during military service, it is less likely than not that the Veteran's current hearing loss is the result of noise exposure during military service that ended in 1968. With respect to tinnitus, the November 2019 audiological examiner noted that there were no complaints of tinnitus in service, and he relayed the Veteran's report that the onset was 10-15 years earlier. He concluded by opining that it is less likely than not that the Veteran's claimed tinnitus is the result of noise exposure during military service that ended over 50 years earlier. He further opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The Board finds this evidence probative and notes that there is no contrary medical opinion on file. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (The probative value of a medical opinion depends on whether it considered an accurate history, was definitive, and included a sufficient rationale.). The Veteran's belief that his hearing loss and tinnitus disabilities are related to service, namely to inservice noise exposure, is not probative evidence since he is not competent to provide a nexus opinion regarding this issue. This is because the issue is medically complex as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Inasmuch as the weight of evidence is against an essential element for these claims, i.e., evidence of a causal relationship between the Veteran's post-service bilateral hearing loss disability and tinnitus and a disease or injury incurred or aggravated during service, the claims must be denied. Shedden, 381 F.3d at 1167. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against these claims, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b). Respiratory Disability The Veteran contends he has COPD and emphysema as a result of service. Specifically, he states he was exposed to brake dust, cleaning agents, and other chemicals when he worked in a motor pool in service which has affected his breathing. A January 1967 service treatment record shows the Veteran was seen at WAH (Walson Army Hospital) emergency outpatient clinic for a sore throat and to rule out upper respiratory infection. Three days later, a "stamped" note from WAH Fort Dix, New Jersey shows the Veteran was discharged to duty with "Diagnosis: (4750)[.]" His July 1968 discharge examination report shows that he had a normal clinical evaluation of the lungs and chest and he denied a history of shortness of breath or pain or pressure in his chest on a July 1968 Report of Medical History. Post-service private cardiac medical records show that the Veteran presented in January 2008 with concerns that he was developing a cardiac problem. He reported a strong family history of heart disease and he said that he had recently been having spells of shortness of breath. He said that he quit smoking two years earlier and had recently gained weight. A stress echocardiogram showed no evidence of ischemia at a high workload leaving the Veteran puzzled about why he was short of breath. The examiner informed the Veteran that he thought that it was due to a lung problem from his prior smoking, work, and his weight gain. He noted that the Veteran was going to undergo pulmonary function testing (PFT). Results of PFTs in January 2008 revealed moderate obstructive airways disease-peripheral airway, emphysematous type. VA outpatient records show that the Veteran presented for an initial visit to enroll in primary care in October 2009. His past medical history included emphysema for two years. He was assessed as having COPD/emphysema with chronic stable exertional shortness of breath and no acute exacerbations. Treatment records through April 2015 note that the Veteran's COPD was stable. Records in March 2016 show that he was treated for an exacerbation of COPD. He was assessed at Pinehurst Medical Center in April 2016 and August 2016 as having moderate COPD that was well controlled. In November 2019, the Veteran underwent a VA respiratory examination. He reported that he did not have any lung problems in service and that his lung problems began 15 years earlier, around 2004, when he noticed some shortness of breath while doing activities. By way of history, he reported that he started smoking when he was 15 years old and that he smoked one pack a day for 30 years until 2006 when he quit smoking. The examiner diagnosed him as having emphysema and recorded March 2008 as the date of diagnosis. He also said that the Veteran was currently using a nebulizer as needed in his home with albuterol but that he had not had to use it. Results of a computed tomography of the thorax without contrast in March 2019 show no evidence of pneumonia, stable tiny pulmonary nodules, and an unchanged appearance of a moderate paraesophageal hernia. As noted, the Veteran was not diagnosed as having COPD or emphysema until decades after his separation from service, in 2008. Regarding the etiology of these disabilities, the VA examiner in November 2019 negated a nexus to service. In this regard, he opined that that it is less likely as not that the veteran incurred his COPD and emphysema (claimed as residuals of pneumonia with breathing and lung problems) by his respiratory problems during service. She explained that after reviewing the Veteran's service treatment records, medical records, history, and examination, there was no documentation of a chronic lung condition during his military service where he was provided with medication that would be expected due to the chronicity of the condition. She added that while the Veteran may have been exposed short term to certain irritants in his work environment, there is no documentation to support that he had respiratory symptoms because of his exposure. Regarding his inservice treatment for an upper respiratory condition associated with a sore throat, the examiner said that this was a transient condition and did not involve the lung area. She further noted that his medical records show where he was diagnosed with emphysema in 2007 during an initial history and physical at the VAMC in 2009 and that the Veteran had a long history of 30+ years of cigarette smoking. She concluded by stating that given the nature of the significant exposure to cigarette smoke that was constant for 30 years of at least a pack per day, this is the most likely cause and far outweighs any short-term exposure event. She added that according to UpToDate: "COPD ie emphysema is a common, preventable, and treatable disease that is characterized by persistent respiratory symptoms and airflow limitation that is due to airway and/or alveolar abnormalities usually caused by significant exposure to noxious particles or gases." As far as the medical link between the Veteran's COPD and smoking history, service connection for a disability attributable to the use of tobacco products, including cigarettes, during service is precluded as a matter of law. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. To the extent that the Veteran relates his post service diagnoses of COPD and emphysema to service, namely, to exposure to brake dust, cleaning agents, and other chemicals, he is not competent to provide a nexus opinion regarding this issue. This is because the issue is medically complex as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Inasmuch as the weight of evidence is against an essential element of this claim, i.e., evidence of a causal relationship between a current respiratory disability diagnosed as COPD and emphysema and an in-service injury or disease, the claim must be denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 53. REASONS FOR REMAND The Veteran asserts that he injured his back in service when he attempted to lift a field generator while working in the motor pool. He said that he was never treated for this injury in service and his service treatment records do not document complaints or treatment for back problems. Post-service treatment records include a lumbar magnetic imaging report in April 1998 that contains an assessment of degenerative disc disease of the lumbar spine. A VA examination report on file in November 2019 contains the Veteran's report that he was receiving disability benefits from the Social Security Administration (SSA) for his back disability. This is consistent with a VA outpatient initial primary care record in October 2009 that notes that the Veteran had been disabled since 2005 due to back (and hip) degenerative joint disease. As the identified SSA records are potentially pertinent to this pending service connection claim, the AOJ should make efforts to obtain them. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010) (VA's duty to assist includes obtaining records from SSA when potentially relevant). The matter is REMANDED for the following action: 1. Request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Then, after taking any additional development deemed appropriate, readjudicate the claim of entitlement to service connection for a back disability claimed as low back DDD. If the benefit being sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.