Citation Nr: 21015986 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 10-12 889 DATE: March 18, 2021 ORDER Entitlement to service connection for a recurrent tinnitus disability is denied. REMANDED Entitlement to service connection for a respiratory disorder to include asthma and COPD and to include as secondary to a service-connected lung cancer disability and/or residuals of a left upper lobectomy status-post is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran’s tinnitus is related to an in-service injury, event, or occurrence or that it manifested to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for recurrent tinnitus have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1965 to May 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 and August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Veteran’s service connection claim for tinnitus and respiratory disability was merged in a June 2016 Board remand. The Board notes that the Veteran’s service connection claims for post-traumatic stress disorder (PTSD) and bilateral hearing loss were also before the Board in June 2016. During the course of the appeal, his service connection for his PTSD was granted in May 2017 and service connection for his bilateral hearing loss disability was dismissed in a February 2019 Joint Motion for Partial Remand (JMPR). As such, his appeals for service connection for PTSD and bilateral hearing loss disabilities are no longer before the Board for adjudication. As previously discussed, the Veteran’s appeals for service connection for tinnitus and respiratory disabilities were initially remanded by the Board in June 2016 to obtain VA examinations to address the etiology of the disabilities. VA examinations were obtained and in an April 2018 decision, the Board denied the Veteran’s claims. He subsequently appealed the April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 JMPR, the parties stipulated that the Board erred in relying on an inadequate VA examination to deny the Veteran’s COPD claim. Moreover, the Board failed to obtain chest imaging studies in August 2013 and April 2015. With regards to his tinnitus claim, the parties stipulated that the June 2016 VA medical opinion did not substantially comply with the Board’s June 2016 Remand directive. The parties further stipulated that the June 2016 VA medical opinion was inadequate because the VA examiner limited her consideration to tinnitus caused by hearing loss and did not address the possibility of tinnitus due to his service noise exposure. In accordance to the February 2019 JMPR, the Board remanded these claims again September 2019 and November 2020 to obtain adequate VA medical opinions. In a January 2021 supplemental statement of the case (SSOC), his claims were again denied. These matters are again before the Board for adjudication. Entitlement to service connection for recurrent tinnitus is denied. The Veteran seeks service connection for tinnitus. Specifically, he contends that his military occupational specialty (MOS) as an infantry direct fire crewman exposed him to hazardous noise associated with combat and with his military duties. See February 2018 Appellate Brief. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as tinnitus, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). In addressing the first element of a service connection claim, a June 2015 VA examiner determined that the Veteran had tinnitus. The Board further notes that when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a medical determination in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Thus, the Veteran’s reports of tinnitus are also sufficient to establish the presence of a current disability. Accordingly, the Board finds that the evidence shows a current diagnosis of a tinnitus disability. With regard to the second element, the Board finds that his service treatment records are negative for any complaints or treatment of symptoms associated with tinnitus or that he was diagnosed with tinnitus. He did not endorse having any hearing or ear troubles in a February 1965 and April 1967 Report of Medical History. His February 1965 entrance examination and April 1967 separation examination further reflect normal ear evaluation. While there were no in-service complaints, treatment, or diagnosis of tinnitus, the Board has considered the Veteran’s reports of in-service exposure to hazardous noise under 38 U.S.C. § 1154 (b). Under the provision of 38 U.S.C. § 1154 (b), in the case of any veteran who engaged in combat with the enemy in active service, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. . The Veteran’s DD-214 indicates that he had combat service, as reflected by his awards and decorations indicative of combat service, including the Combat Infantryman Badge and his military occupational specialty (MOS) was an infantry direct fire crewman. See Veteran’s DD-214. Given such, the Board finds that the Veteran’s reports of acoustic trauma in service are consistent with the circumstances of his combat service as an infantryman. Absent clear and convincing evidence to the contrary, the Veteran’s statements are sufficient to establish both exposure to in-service acoustic trauma and in-service injury. With respect to the third element, the nexus requirement, the provisions of section 1154(b) do not provide a substitute for evidence of a causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service. See Wade v. West, 11 Vet. App. 302, 305 (1999). In this regard, the Board notes that the Veteran was provided with VA examinations in June 2015, June 2016, and December 2019. However, the Board previously found these VA examinations to be inadequate for adjudication purposes. Following the November 2020 Board remand, a VA addendum was obtained in January 2021. Therein, the VA examiner opined that the Veteran reported his tinnitus began about 20 to 25 years prior to the examination which would place the onset of his disability between 1994 and 1999. The VA examiner noted he served in the military from May 1965 and May 1967 and that it indicated his tinnitus started several years after the military. The VA examiner further opined that his tinnitus was less likely than not due to military noise exposure and that if it were due to military noise exposure, he would have had it while he was active. While the VA examiner noted that the Veteran had a significant history of military noise exposure, the VA examiner stated that he had an even more significant history of occupational noise exposure working at General Motors for 31 years. The VA examiner stated that, in her professional opinion, the Veteran’s tinnitus was due to occupational noise exposure, not military noise exposure, especially given that the Veteran’s tinnitus was not present during active duty; rather, the tinnitus started about 30 years later. Based on this VA medical opinion, the Board finds that a nexus has not been established. The Board has further considered the Veteran’s opinion that his tinnitus is related to hazardous noise exposure in service based on his MOS. The Board assigns more probative weight to the January 2021 VA medical opinion which demonstrates that the onset of the Veteran’s tinnitus disability occurred many years after his separation from service and is likely due to his 31 years of occupational noise exposure working at General Motors. Furthermore, the Board finds that the Veteran’s reporting in the June 2016 and December 2019 VA examination that the onset of his chronic tinnitus disorder began 20 to 25 years prior to those VA examinations to be probative and compelling. As the Veteran’s tinnitus disability is categorized as a chronic disease under 38 C.F.R. § 3.309, the Board has further considered whether he is entitled to service connection on a presumptive basis. Upon review of the evidence, an August 2015 VA examination reflects he was unable to give a specific date for the onset of tinnitus. However, in his subsequent June 2015 and December 2019 VA examination, he reported that his tinnitus began about 20 to 25 years prior to these VA examinations. Based on the Veteran’s report of onset, which the Board has no reason to doubt, the onset of tinnitus was approximately in 1995 which, at the earliest, would be about 28 years after his separation from service. As there is no evidence to the contrary and the Veteran’s statements have remained consistent regarding the onset of his tinnitus, the Board finds that his lay statements are competent and credible, but even as such do not serve to establish a nexus between the noise exposure in service and his current tinnitus disability. Accordingly, as there is no additional evidence indicating that his tinnitus began in service or within a year following separation from service, presumptive service connection for tinnitus is not warranted. Based on the foregoing reasons, the Board finds that the preponderance of the evidence is against a finding that his tinnitus disability is etiologically related to any in-service event, injury. The preponderance of the evidence is also against a finding that his tinnitus manifested to a compensable degree within a year following separation from service. The Board has considered the benefit of the doubt doctrine but finds that is not applicable in this instance. Thus, the Veteran’s service connection claim for a tinnitus disability must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND 1. Entitlement to a respiratory disorder to include asthma and COPD and to include as secondary to a service-connected lung cancer disability and/or residuals of a left upper lobectomy status-post is remanded. The Board finds that further remand is warranted before it can adjudicate the merits of the claim. In the November 2020 remand, the Board found that the July 2020 VA medical opinion for direct service connection was inadequate because the VA examiner did not discuss any other relevant information or theories in relation to direct service connection outside of asthma. With regards to secondary service connection, the Board found that the VA examiner’s medical statement regarding the onset of his COPD were internally inconsistent and that no medical opinion was provided. With regards to the aggravation element, the VA examiner initially rendered a positive nexus stating that his COPD was aggravated beyond its natural progression by his asthma or lung cancer. However, upon the RO requesting that the VA examiner state the baseline for COPD and the degree of aggravation solely by the service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy, the VA examiner changed her medical opinion rendered in the July 2020 VA examination. The VA examiner stated that the “change is due to lack of evidence indicating progression or worsening … It is less likely as not that Veteran’s COPD was aggravated beyond its natural progression by his asthma or lung cancer.” While the VA examiner provided an explanation, the Board found that her rationale was unclear because it focused on recurrence or progression of the Veteran’s lung cancer and not whether the Veteran’s service-connected lung cancer aggravated his COPD since 2006. As such, the Board remanded the claim to obtain an addendum opinion from the July 2020 VA examiner to clarify these medical opinions. Following that Board remand, a December 2020 VA addendum opinion was obtained. Unfortunately, the Board finds that VA medical opinion remains inadequate and does not substantially comply with the Board’s November 2020 remand regarding his respiratory disabilities. Specifically, the Board finds that the VA examiner’s opinions regarding the Veteran’s asthma disability are internally inconsistent. The VA examiner initially states that the Veteran had pre-existing asthma during his childhood but no imaging or pulmonary function testing (PFTS) were conducted for his asthma. The VA examiner further states that the Veteran had a history of asthma prior to entry into the military. However, the VA examiner later states, in the opinion for secondary service connection, that a concise diagnosis and evidence of childhood asthma was not provided at the time of entry into military service and that his statement regarding childhood asthma was a subjective history statement documented upon entry to military service in 1965. As such, it is unclear to the Board whether the Veteran’s asthma disability clearly and unmistakably pre-existed military service, and if so whether it was aggravated by any events, injury, or disease during his military service. The medical opinion for secondary service connection for the Veteran’s asthma disability is also inadequate. The VA examiner opined that his pre-existing asthma was less likely than not caused by or proximately due to his service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy. However, VA examiner simply stated that the medical evidence does not support relevant documentation that his asthma, diagnosed in 2003, caused his childhood asthma. The VA examiner further contradicts her medical opinion regarding aggravation of the Veteran’s childhood asthma by stating that a concise diagnosis and evidence of childhood asthma was not provided at the time of entry into military service and that the report of childhood asthma was a subjective history statement documented at entrance. Moreover, while the VA examiner rendered an opinion addressing aggravation, it only addressed aggravation of a pre-existing asthma disability, the VA examiner did not address whether the Veteran’s asthma disability, diagnosed in 2003, was aggravated by his service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy. Based on the foregoing reasons, the Board finds that the VA medical opinions regarding the Veteran’s pre-existing asthma disability or asthma disability diagnosed in 2003 are inadequate to adjudicate the Veteran’s claim. The Board further finds that the VA medical opinions for COPD, to include direct and secondary service connection are inadequate. With regards to the VA examiner’s direct service connection opinion, the VA examiner noted that the Veteran’s asthma or COPD diagnosis during 1967 to 2003 were not of record in the evidence reviewed. The VA examiner further noted that his VBMS records did not provide tabbed evidence of asthma or COPD from 1967 to 2003 or during his dates of service that his disability occurred in or is otherwise etiologically related to an in-service event, injury, or service. However, the VA examiner does not explicitly state whether the Veteran’s COPD was at least as likely as not etiologically related to an in-service event, injury, or disease. As provided in Stefl v. Nicholson, if a medical opinion does not clearly address the relevant facts and medical science, the Board “is left to rely on its own lay opinion, which it is forbidden from doing.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (Citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). With regards to the VA medical opinions on secondary service-connection, the Board finds that the VA examiner failed to address the proximate causation element. Moreover, while the VA examiner rendered an opinion on the aggravation element, the opinion is inadequate. Specifically, the VA examiner opined that aggravation of his COPD resulting from his service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy was not documented in the STRs. The Board notes that the Veteran asserts his COPD was aggravated after his diagnosis of lung cancer in 2006 and left upper lobectomy in 2008. As such, it is unclear why the VA examiner based her medical opinion for aggravation of the Veteran COPD on his STRs, which are his service treatment records, and not medical evidence after military service. The Board further finds that the VA examiner does not clearly address the aggravation element for secondary service connection. While the VA examiner attempted to reconcile her conflicting medical opinions rendered in the July 2020 and September 2020 VA examinations, the explanation provided is incomplete and inadequate. Specifically, the explanation relies on to medical treatment records from 2016 to 2020. The Veteran’s claims file reflects chest x-rays and PFTs dating back to 2006. As such, it does not appear that the VA medical opinion considered the totality of the Veteran’s medical treatment records for his COPD to include previous chest x-rays or PFTS of record. Additionally, the Board finds that the VA examiner’s rationale is internally inconsistent. While the VA examiner stated that aggravation or worsening of his COPD from 2016 to 2020 was not supported, she subsequently stated that she is unable to provide evidence that his COPD has worsened, is an aggravation of, or a residual of his long standing post-military service COPD, or as a result of his lung cancer without evidence from a pulmonologist or his primary care provider as it would be resorting to mere speculations. As there remains no adequate medical opinion for consideration, and the January 2021 VA addendum opinion did not substantially comply with the November 2020 Board remand, the Board finds that these matters must be remanded to obtain an adequate VA medical opinion addressing secondary service connection. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran’s respiratory disability to include asthma and COPD and associate them with the claims file. 2. Schedule the Veteran for a VA examination with a different examiner than the December 2020 VA examiner to determine the nature and etiology of the Veteran’s COPD, if possible, with a pulmonologist or a medical professional with expertise in pulmonology. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The medical opinion should, among other things, include a discussion of the Veteran’s documented history and assertions. The examiner is requested to provide a medical opinion for the following: Asthma Disability a.) Reconcile whether the Veteran’s asthma disability pre-existed his military service. If you believe that the Veteran’s asthma disability pre-existed his entry onto military service, then was his asthma disability aggravated beyond its natural progression by his military service? b.) If the Veteran’s asthma disability did not pre-exist service, is it at least as likely as not that his asthma disability diagnosed in 1990 is etiologically related to an in-service event, injury, or disease? c.) Is it at least as likely as not that his asthma disability diagnosed in 1990 was (1) proximately caused by or (2) aggravated by his service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy? COPD a.) Is it at least as likely as not that the Veteran’s COPD is etiologically related to an in-service event, injury, or disease? b.) Is it at least as likely as not that the Veteran’s service-connected lung cancer and/or residuals of lung cancer, status-post left upper lobectomy (1) proximately caused the Veteran’s COPD or (2) aggravated the Veteran’s COPD beyond its natural progression? The examiner is reminded that an opinion must be rendered for both elements of a secondary service connection, which includes proximate causation and aggravation. The examiner must consider the Veteran and his wife’s lay statements that he has experienced an increased shortness of breath and difficulty with daily activities since the 2006 left upper lobectomy and address these lay statements in the medical opinions. A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.