Citation Nr: 21021151 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-13 298 DATE: April 9, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for pulmonary fibrosis, to include as secondary to service-connected sleep apnea, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from April 1962 to April 1964. These issues come 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. The Board notes that the Veteran’s claim of entitlement to service connection for sleep apnea was granted in a February 2020 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2019). 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. The Veteran’s military occupational specialty was that of a calvary scout, which has a high probability of hazardous noise exposure. Based on this evidence, the Board finds the Veteran had exposure to in-service hazardous noise. 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. The clinician did not provide a rationale for her 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. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examinations and medical opinions are inadequate for adjudicative purposes. The Board notes that the absence of documentation of, treatment for, or complaints of hearing loss during service cannot serve as the basis of a negative etiology opinion. Henley v. Brown, 5 Vet. App. 155, 157 (1993). In addition, the examiner’s opinions relied, in part, on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans’ Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The examiner did not address the Veteran’s reports of continuous hearing loss symptomology from active duty service to the present. He testified at his Board hearing that he has experienced hearing issues since service; however, he did not report this to his post-service employer for fear of losing his job. Based on the inadequacies of the VA examinations and opinions, the Board finds that an addendum medical opinion must be obtained that addresses all the evidence of record, including the Veteran’s lay statements. 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. To date, he has not undergone a VA examination to determine the nature and etiology of his pulmonary fibrosis. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The Veteran’s claim for service connection for pulmonary fibrosis meets all the McLendon elements for a VA examination. The Veteran has a current diagnosis of pulmonary fibrosis. He also testified at the Board hearing that he was exposed to in-service diesel exhaust fumes. However, there is insufficient competent medical evidence to decide this claim. The Board notes that the Veteran has submitted an November 2020 private medical nexus opinion. The clinician opined that the Veteran’s pulmonary fibrosis was the result of in-service exhaust exposure. However, this opinion is inadequate based on the lack of a rationale. Therefore, a VA examination is warranted. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Obtain an addendum medical opinion regarding the etiology of the Veteran’s bilateral hearing loss from a medical professional with appropriate expertise. The electronic claims file must be made available to the examiner and a notation made on the examination report that the claims file has been reviewed. If the examiner determines that another VA examination is necessary, one should be scheduled (or a telehealth interview if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, to include noise exposure the Veteran experienced in the course of his duties as a calvary scout? The examiner must address the Veteran’s lay statements regarding continuous hearing loss symptomology since service. The examiner is advised that the term “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 medically sound to find in favor of conclusion as it is to find against it. The examiner is to assume the Veteran is competent to report on acoustic trauma he was exposed to during active duty and of any hearing loss symptomology he experienced at that time and thereafter and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. In providing these opinions, the examiner must recognize the fact that no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for a VA examination (or a telehealth interview if an in-person examination is not feasible) to determine the nature and etiology of his pulmonary fibrosis with a medical professional with appropriate expertise. The claims file should be reviewed and a notation made on the examination report that the claims file was reviewed. Based on the examination results, and a review of the record, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s pulmonary fibrosis had its onset in service or is otherwise related to service? The examiner must address the Veteran’s contention that exposure to in-service diesel fumes caused his pulmonary fibrosis. (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the pulmonary fibrosis was proximately due to the Veteran’s service-connected disabilities, including but not limited to: his sleep apnea? (c.) If the answer to (b.) is negative, whether it is at least as likely as not that the pulmonary fibrosis was aggravated beyond its normal progression by the Veteran’s service-connected disabilities, including but not limited to: his sleep apnea? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. (Continued on the next page)   In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 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.