Citation Nr: 21065322 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 20-13 298 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted subject to the laws and regulations governing monetary awards. Entitlement to service connection for pulmonary fibrosis, to include as secondary to service-connected sleep apnea is denied. FINDINGS OF FACT 1. Giving the benefit of the doubt, the Veteran's bilateral hearing loss is the result of military service. 2. The Veteran's pulmonary fibrosis did not manifest during service, is not the result of military service, or is secondary to the service-connected sleep apnea. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for pulmonary fibrosis, to include as secondary to service-connected sleep apnea, are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from April 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This matter was recently remanded in April 2021 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently experiences bilateral hearing loss that resulted from in-service acoustic trauma. His claim for compensation was received by VA in September 2017. Law and Regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is recognized by VA as a "chronic condition" under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Evidence and Analysis The Board notes that the Veteran currently has hearing loss for VA purposes. An April 2018 VA examination report noted auditory thresholds at or higher than 40 decibels between 2000 and 4000 Hz. In addition, the Board previously conceded in-service hazardous noise exposure based on the Veteran's military occupational specialty (MOS) of a calvary scout. Therefore, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between the bilateral hearing loss and military service. The Board finds that the evidence is in relative equipoise on this issue. As such, the Veteran is entitled to the benefit of the doubt and service connection is warranted. The Veteran testified at his Board hearing that he has experienced hearing issues, such as popping and ringing, since service. He also testified that he had no prior hearing issues and had been documented with hearing loss since at least 1982. However, he stated that he did not report his hearing loss to his post-service employer for fear of losing his employment. Furthermore, he reported experiencing post-service noise exposure, but denied that it was as loud as his in-service hazardous noise exposure. In the 1960s, the military changed its standard of measuring hearing acuity, replacing the American Standards Association (ASA) units with the current International Standards Organization (ISO) units. Prior to January 1, 1967, service departments are assumed to have used ASA units. Service departments are assumed to have changed to ISO units after December 31, 1970. For the period between January 1, 1967, and December 31, 1970, VA is to consider the data under both the ASA and ISO standards unless it is clearly indicated which units were used. The Veteran had an in-service audiological evaluation in March 1964, at which time auditory thresholds were recorded. The results of this testing have been converted from ASA units to ISO units. The Veteran's service treatment records (STRs) do not document any hearing complaints or treatment. He did not undergo an audiogram at his entrance examination. Instead, only whispered voice testing was conducted. VA has determined that whispered voice tests "are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VA Training Letter 10-02, at 6 (Mar. 18, 2010). Accordingly, the whisper test noted in the Veteran's entrance examination report is of very limited probative value. The March 1964 separation examination shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 Not tested 05 LEFT 15 10 10 Not tested 05 A review of the Veteran's post-service VA treatment records noted complaints of decreased bilateral hearing. Of note, the Veteran submitted a November 2018 private audiology examination report. The clinician noted the Veteran's history of in-service noise exposure "while working on and around equipment and artillery" without the use of hearing protection. The clinician also noted post-service noise exposure without the use of hearing protection as a result of his employment as a truck driver. Clinical examination revealed hearing loss for VA purposes. The clinician then gave a positive opinion that the hearing loss had "been made worse by the military service based noise exposure." The Board finds that this examination is limited in probative value, as there is no rationale for this opinion. An opinion without any rationale is not entitled to any probative value. The Veteran underwent a VA examination in February 2018. He was diagnosed with bilateral sensorineural hearing loss. Clinical testing revealed hearing loss for VA purposes. The examiner gave a positive etiology opinion that the bilateral hearing loss is related to military service. In support of this opinion, the examiner noted the Veteran's exposure to excessive noise during service and excessive noise/acoustic trauma is known to cause hearing loss. The examiner noted that the Veteran's STRs were unavailable for review at the time of report preparation. An addendum VA opinion was issued in April 2018. After a review of the record, including the Veteran's STRs, the examiner gave a negative opinion that the hearing loss was related to in-service noise exposure. The examiner noted that the separation hearing thresholds were too low for any significant permanent shift since enlistment. In addition, the examiner noted that there were no reports of hearing decrease in the STRs. The Veteran underwent a second VA examination in April 2018. He was diagnosed with bilateral sensorineural hearing loss. Clinical testing revealed hearing loss for VA purposes. The examiner then gave a negative opinion that the hearing loss was due to military service. The examiner noted that the Veteran had normal hearing thresholds at separation, with no in-service hearing complaints. In addition, the examiner found that the first reports of hearing loss was in February 2013, over 45 years since discharge. Finally, the examiner noted the Veteran's post-service work history as a truck driver likely contributed to his hearing loss. However, the Board noted that these opinions were inadequate for adjudicative purposes, as they relied on the absence of documentation of, treatment for, or complaints of hearing loss during service. In addition, they failed to consider the Veteran's reports of continuous hearing issues since service. An addendum VA medical opinion was issued in June 2021. The examiner gave a negative opinion that the hearing loss was the result of military service. He noted that the previous VA examination was adequate not because of a lack of hearing loss evidence, but based on proof of normal hearing at the Veteran's separation examination. While the examiner noted that hearing loss was medically possible based on the Veteran's lay statements and MOS, the evidence showed normal hearing at separation when the reported hearing loss took place. Furthermore, the examiner went on to state that the term "at least as likely as not" means that the evidence of record was so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Finally, the examiner cited the evidence in support of hearing loss (MOS, lay statements) and evidence against the Veteran's claim (normal hearing at separation, 39 years of noise exposure in post-service jobs). The Board finds that the evidence is divided regarding whether the bilateral hearing loss relates to the in-service noise exposure. Certain evidence indicates that the Veteran did not incur a hearing loss during service. None of the STRs dated during active duty indicates a hearing problem during service. The March 1964 separation report of medical examination indicates normal hearing acuity. The earliest medical evidence of record of a hearing problem is dated in February 2013, over 45 years after separation from active duty. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Further, in the VA reports the examiners found hearing loss unrelated to active duty. As the Board has noted in prior remands, however, these opinions are undermined insofar as the examiners did not consider the lay evidence from the Veteran supporting the notion that acoustic trauma during service led to subsequent hearing loss following service. See Bloom v. West, 12 Vet. App. 185, 187(1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Notwithstanding the Board's multiple attempts to obtain a comprehensive medical opinion, the record still lacks a VA opinion which fully addresses the lay evidence describing symptoms during and soon after service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes an examination, an adequate one must be produced). Certain evidence supports the claim, moreover. Irrespective of the VA examiners' findings, there is no evidence of significant post-service noise exposure to contradict the assertion that the bilateral hearing loss is likewise connected to service. The lay evidence solidly backs the claim and supports the notion that a continuity of symptomatology has existed since service discharge. See Walker, supra. In testimony before the Board, the Veteran recalled hearing problems since service and denied any post-service hazardous noise exposure. The lay statements are probative because laypersons are competent to describe observable symptomatology such as diminished hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board finds the Veteran's testimony persuasive. See Smith v. Derwinski, 1 Vet. App. 235 (1991). Lastly, the November 2018 private report states that hearing loss is as likely as not related to hazardous noise during service. Although, as noted in the remands, this examiner did not provide a rationale for this opinion, the opinion is nevertheless based on the accepted notion of in-service noise exposure, and on the Veteran's lay assertions. It is therefore of some probative value. See Bloom, supra. In sum, the evidence is divided regarding whether bilateral hearing loss was incurred in service. The VA medical evidence indicates no such nexus but is of reduced probative value. The lay evidence indicates that hearing loss relates to service and that a continuity of symptoms may have existed since service. This view is supported by a private audiologist, moreover. Based on the foregoing evidentiary background, the Board cannot find that the preponderance of the evidence is against the claim. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for pulmonary fibrosis, to include as secondary to service-connected sleep apnea. The Veteran contends that his pulmonary fibrosis is the result of inhaling in-service diesel fumes. In addition, he contends that his service-connected sleep apnea caused and/or aggravated his pulmonary fibrosis. His claim for compensation was received by VA in September 2017. Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Board finds that the Veteran currently has pulmonary fibrosis. An August 2021 VA examination report noted a diagnosis of pulmonary fibrosis. In addition, the Veteran testified at his Board hearing that he was exposed to in-service diesel exhaust fumes. Therefore, the two Shedden criteria are met and without dispute. The remaining issues, therefore, are (1) whether there is a causal connection between the pulmonary fibrosis and military service, or (2) whether the pulmonary fibrosis was caused or aggravated by his service-connected sleep apnea. The preponderance of the evidence is against the Veteran. Therefore, his claim of service connection must be denied. A review of the STRs reveal no complaints or treatment for respiratory issues. Clinical examination was normal on entrance and discharge. A review of the post-service VA and private treatment record note complaints and treatment for pulmonary fibrosis. Of note, the Veteran submitted private medical nexus opinions in November 2020 and August 2021. The clinician opined that the Veteran's pulmonary fibrosis was the result of in-service exhaust exposure. However, these opinions are given limited probative value, as there is no rationale for each opinion. An opinion based on the lack of a rationale is entitled to no probative value. The Veteran underwent a VA examination in August 2021. He was diagnosed with pulmonary fibrosis. The examiner then gave a negative opinion that the pulmonary fibrosis is the result of military service. She noted that there were no medical records or complaints of a respiratory condition during military service. In addition, she noted that there were no records in the claims file showing that any long term exposure to diesel fumes would result in pulmonary fibrosis. The examiner then gave a negative opinion that the pulmonary fibrosis was caused or aggravated by the service-connected sleep apnea. She noted that there was no direct causality or medical literature directly linking pulmonary fibrosis with sleep apnea. In addition, she noted that there was no pathophysiological relationship between pulmonary fibrosis and sleep apnea to warrant causation or aggravation. The Board finds the VA opinions persuasive. The examiner noted the Veteran's self-reported medical history, indicated a review of the claims file, and based this opinion on the Veteran's interview, the claims file review, and the VA examination results. As such, the Board finds the opinions of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, the August 2021 opinions are the only medical opinions of record that addresses the issue of medical nexus. As stated above, the private medical opinions are inadequate due to a lack of rationale. In light of the negative nexus opinion and lack of positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran's pulmonary fibrosis. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his pulmonary fibrosis is the result of his military service. He testified that he was exposed to in-service diesel fumes that caused his pulmonary fibrosis. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of pulmonary fibrosis requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that his pulmonary fibrosis is not due to his military service, including as a result of his service-connected sleep apnea. Accordingly, his lay statements are entitled to low probative value. Since a preponderance of the evidence weights against the Veteran, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, his claim of service connection for pulmonary fibrosis is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, Associate 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.