Citation Nr: 21008134 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 20-25 104 DATE: February 11, 2021 ORDER Service connection for degenerative disease of the lumbar and thoracic spine is granted. Service connection for lung disease resulting from asbestos exposure, including lung cancer, parenchymal and interstitial lung disease, is granted. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED The appeal for entitlement to service connection for a right knee disability is remanded. The appeal for entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Degenerative disease involving the Veteran’s lumbar and thoracic spine is reasonably related to his history of airborne and special forces service. 2. The Veteran was exposed to asbestos in buildings at Fort Bragg; lung cancer and parenchymal/interstitial lung disease may be reasonably associated with such exposure. 3. Bilateral hearing loss and tinnitus first manifested many years after service and are not shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disease of the lumbar and thoracic spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for lung pathology including lung cancer and parenchymal/interstitial lung disease arising from asbestos exposure during service have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2016 Agency of Original Jurisdiction (AOJ) decision. In November 2020, the Veteran presented sworn testimony in support of his appeal during a virtual hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket in light of the Veteran’s age and health status. Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran may benefit from a presumption of service connection based on a chronic disease, such as arthritis or an organic disease of the nervous system such as sensorineural hearing loss and tinnitus. 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage). When a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Even if a chronic disease is not shown within one year of discharge, service connection may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Degenerative disease lumbar and thoracic spine The Veteran’s service personnel records show that he had nearly three years of airborne service and two years in the special forces. His personnel records document at least twenty-five airborne jumps. During the hearing on appeal, he testified as to numerous bruises, aches, and pains sustained during the course of these activities. The evidence of record shows that the Veteran currently has thoracic spine spondylosis and diffuse idiopathic skeletal hyperostosis; more generally degenerative disease. He takes opiate medication prescribed by a private physician for control of his back pain. In an October 2020 statement, the Veteran’s VA primary care physician has linked degenerative disease affecting his low back to his special forces and airborne duties. This nexus opinion supports the Veteran’s claim for service connection. The rigors and stresses involved in parachute jumps and special forces training are well known. As a physician has linked the Veteran’s current spine disability to these service activities, service connection for degenerative joint disease affecting the lumbar and thoracic spine is warranted. We note that in implementing this grant, the AOJ may wish to have the Veteran undergo a VA compensation examination to determine the precise level of impairment caused by the Veteran’s lumbar and thoracic degenerative disease. 2. Lung disease from asbestos exposure Case law dictates that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has interpreted this appeal as encompassing all lung and respiratory pathology. The Veteran asserts that he was exposed to asbestos in the building materials at Fort Bragg, where he spent most of his service time. He specifically testified that during service, he slept in a space with exposed pipes wrapped with asbestos insulation. The Board finds that the Veteran’s assertions regarding the presence of asbestos in buildings at Fort Bragg are consistent with other scientific studies and conclusions. Exposure to asbestos at Army installations during the time when the Veteran was in service was common. https://www.asbestos.com/news/2019/09/25/asbestos-army-post-concerns/ For purposes of this appeal, the Board therefore concedes the Veteran’s exposure to asbestos at Fort Bragg. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-related diseases (May 11, 1988). In addition, an opinion by VA's Office of General Counsel discusses the development of service connection claims based upon asbestos exposure. VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. Asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Generally, lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In this case, the Veteran has a diagnosis of lung cancer and has been treated with radiation therapy. According to his medical records the cancerous lesion is located in a part of the lung where biopsy cannot be accomplished. Thus, the lung cancer itself is confirmed for the record; the lack of a more specific diagnosis does not preclude VA from addressing the disease. The Veteran also carries diagnoses of chronic obstructive pulmonary disease, emphysema, and parenchymal/interstitial lung disease. As discussed above, the parenchymal and interstitial lung disease is medically associated with asbestos exposure, while the obstructive disease and emphysema generally is not associated with asbestos. In additional to applying these generally accepted medical principles to the Veteran’s case, the Board observes that the Veteran’s primary care physician has medically linked the Veteran’s lung cancer to asbestos exposure during service. Therefore, the evidence supports a grant of service connection for asbestos-related lung disease, to include lung cancer, parenchymal and interstitial lung disease. 3. Bilateral hearing loss and tinnitus The Veteran asserts that he was exposed to significant acoustic trauma during service, especially from explosives and demolition, and weapons fire; all without hearing protection. He asserts that he now has hearing loss and tinnitus from these exposures. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. The threshold for normal hearing, however, is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, hearing loss at this level does not equate as being a “disability” for VA purposes. McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). When a chronic disease such as hearing loss, which is considered an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year of the Veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran’s period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of “continuity of symptomatology” since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for an enumerated “chronic disease” shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland’s Illustrated Medical Dictionary, 1322 (32nd ed. 2012). In adopting the current rating criteria for tinnitus under Diagnostic Code (DC) 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s service treatment records reflect normal hearing throughout service and at discharge. There are no specific complaints or notations involving hearing or tinnitus in his service treatment records. Likewise, the Veteran’s recent VA treatment records are negative for complaints of hearing difficulty or tinnitus. According to the general medical history taken in conjunction with the Veteran’s initial VA outpatient visit in January 2012 when he established VA medical care, his hearing was not impaired, and he reported no hearing difficulty or tinnitus. Given the Veteran’s demonstrated noise exposure during service, in August 2016 the AOJ obtained an informed medical opinion based upon review of the Veteran’s medical records, including his service treatment records. After such review, an audiologist noted that the Veteran was discharged with normal hearing acuity bilaterally and there was no threshold shift during service. Based upon this evidence in conjunction with audiological expertise, the audiologist determined that hearing loss and tinnitus were not shown in or incurred during service. During the November 2020 hearing on appeal, the Veteran testified as to his noise exposure during service and the absence of hearing protection during service. He testified that he did not “really” experience hearing loss or ringing in his ears during service, but that he is hard of hearing now and he believes his problems began during service. He also explained that the culture of special forces was against complaining about ills and that he and his fellow serviceman just coped and did not complain. His hearing testimony is considered credible. Upon review, the Board finds that the Veteran mostly likely had significant noise exposure in service, as would be consistent with his military experiences in airborne operations and special forces operations, as well as consistent with his hearing testimony regarding explosives operations. The evidence does not show, however, that any current hearing loss is related to service in any way. Rather, his hearing was normal upon separation from service and the available medical records show that he initially complained of hearing difficulties many years after service when he filed the current claim for compensation. The medical evidence, as interpreted by an expert in audiology shows that the Veteran did not incur hearing loss during service. In this regard, the Board emphasizes the normal audiometric testing accomplished during service and upon discharge from service, in addition to the Veteran’s own report in 2012 that he was not experiencing difficulty hearing at that time. No connection to service or to noise exposure in service is established. With respect to causation, the Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship between hearing loss and in-service noise exposure. The Board places greater probative weight to the VA opinion interpreting the lay and medical evidence against the entirety of the record. With respect to establishing service connection based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge, according to the hearing transcript, the Veteran responded, “Well no,” to his attorney’s question regarding whether he experienced issues with hearing or ringing in his ears during service but was also a little ambiguous as to whether he noticed decreased hearing acuity during service. To the extent the lay evidence may allege a perception to decreased hearing acuity since service, these perceptions do not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a “disability” is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure. McKinney, 28 Vet. App. at 24-5. In short, any lay recollections of decreased hearing acuity since service is not capable of showing it rose to the level of a “disability” for VA purposes in service, or to a ratable level of disability within one year of service discharge. As such, the Board must deny the Veteran’s claim for entitlement to service connection for hearing loss. The analysis regarding the Veteran’s claimed tinnitus is a little different as the presence of tinnitus can be established on the basis of lay evidence alone. Charles, supra. In this case, however, the Veteran denied experiencing tinnitus during service and again denied tinnitus in 2012. In his hearing testimony, he did not indicate continuity of tinnitus symptoms at any point. Rather, according to the hearing transcript, he responded, “Well no,” to his attorney’s question regarding whether he experienced issues with hearing or ringing in his ears during service and never explicitly endorsed experiencing tinnitus in service or since service. Thus, there is no basis for a grant of service connection for tinnitus based upon continuity pursuant to 38 C.F.R. § 3.303(b) or as a chronic disease manifest within one year of service under 38 C.F.R. § 3.303(b)38 C.F.R. § 3.309(b). In sum, the preponderance of the evidence is against service connection for bilateral hearing loss or tinnitus. The appeal must be denied. REASONS FOR REMAND Right and left knees The Veteran’s claim for service connection for disabilities affecting his knees rests upon the same premise as the claim involving his spine; that multiple parachute jumps, and minor injuries sustained during special forces training has now resulted in degenerative disease affecting his knees. That the Veteran was involved in these activities is established in the record. Also of record is the VA physician’s opinion that the Veteran has bilateral knee pain related to his service duties. What is not yet established in the record is medical evidence confirming a diagnosis or diagnoses of the Veteran’s knees, or functional impairment of the knees. The Veteran’s VA treatment records show that he gets private medical care for orthopedic disabilities including his back and knees, but do not provide the cause of the Veteran’s knee pain. Therefore, upon remand, the Veteran is requested to release his private orthopedic records to VA for review by adjudicators. As the case is being remanded, his VA treatment records should be updated for the file as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his orthopedic treatment from 2016 to the present. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present for inclusion in the claims file. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.