Citation Nr: 21021498 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-36 364 DATE: April 13, 2021 ORDER Entitlement to service connection for sinusitis is granted. Entitlement to service connection for bronchitis is granted. Entitlement to service connection for bilateral otitis media is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, his sinusitis is etiologically related to his military service. 2. Resolving doubt in the Veteran’s favor, his bronchitis is etiologically related to his military service. 3. Resolving doubt in the Veteran’s favor, his otitis media is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for bronchitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for otitis media are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to April 1982 and from July 1984 to November 1989. This matter comes before the Board of Veteran’s Appeals (Board) from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the record. The Board notes that in his notice of disagreement (NOD) the Veteran asserted, among other things, that his hearing loss is “accentuated by a constant ringing in the ears.” See additional statements submitted with the NOD. However, the Veteran has not presented a claim of service connection for tinnitus (ringing in the ears). Thus, the Board has no jurisdiction over that assertion. Additionally, the Board has recharacterized the Veteran’s claim of service connection for otitis media, as it appears on the title page of this decision to better reflect the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish service connection for a disability, there must be (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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sinusitis The Veteran seeks service connection for sinusitis. In favor of his claim the Veteran asserted that he was treated for respiratory conditions, including sinusitis, while in service. He noted that his sinusitis, which started in service, has become chronic. He further asserted that his exposure to solvents and metal dust contributed to his condition. See NOD. The Veteran’s STRs show that in August 1977 and in January 1981 he was diagnosed with sinusitis. Further, the Veteran’s STRs show multiple complaints of clogged sinuses, sinus congestions, and diagnoses of upper respiratory infections (URIs). See STRs for July 1977, August 1977, December 1977, January 1978, February 1978, August 1978, March 1979, September 1979, July 1980, December 1980, January 1981, and February 1981, November 1981, March 1985, February 1986, March 1986, and December 1988. In December 2015, two private medical opinions were associated with the claims file. The Veteran’s private physician Dr. S, in his medical letter dated October 2015, did not specifically address the Veteran’s sinusitis and only referred to the Veteran’s “chronic respiratory problems including chronic bronchitis and otitis media.” See medical letter by Dr. S, dated October 2015 and associated with the claims file in December 2015. While the Board acknowledges the physician referred generally to chronic respiratory problems, which in his opinions were in part related to the Veteran’s exposures during service, the Board is unable to afford probative value to this opinion as it pertains to the claim of service connection for sinusitis- as the disability was not specifically mentioned in the opinion. Another private medical opinion by Dr. T, dated December 2015, noted the Veteran’s lack of history of the condition prior to service, his report of in-service exposure to toxic chemicals, dust and solvents, and opined that from his evaluation, and after a review of the Veteran’s medical records, the Veteran’s respiratory issues, including chronic sinusitis, appeared to be more likely than not associated with his time in service. See medical letter by Dr. T, dated December 2015 and associated with the claims file that same month. The Board finds this medical opinion adequate and affords it high probative value. In June 2016, the Veteran was administered a Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (Sinusitis DBQ) where the Veteran’s diagnoses of chronic sinusitis and allergic rhinitis were noted. See Sinusitis DBQ of June 2016, associated with the claims file in August 2016. Following the examination, the examiner subscribed a medical opinion where he opined that the claimed condition was less likely than not incurred in or caused by the Veteran’s service. In favor of this opinion the examiner noted that the development of sinusitis from chronic bronchitis was clinically highly unlikely. He noted that the reverse was more probable wherein the Veteran’s bronchitis was caused by his chronic sinusitis. The examiner noted that chronic sinusitis is not a progression of bronchitis but a separate diagnosis altogether. See medical opinion of June 2016, associated with the claims file in August 2016. The Board notes this medical opinion did not address whether the Veteran’s sinusitis had its onset in service or is otherwise related to service. Thus, the Board assigns it no probative value as it pertains to the Veteran’s claim of service connection for sinusitis. Based on the above, the Board finds that the Veteran’s claim of service connection for sinusitis surpasses the first and second prongs of the Shedden service connection test- as the Veteran has a current diagnosis of sinusitis and his STRs show he was treated for the condition during service. Additionally, the Board notes that the claimed condition has been medically linked to his service by his private physician; surpassing the third prong of the Shedden service connection test- the nexus requirement. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s sinusitis is etiologically related to his service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for sinusitis is warranted on a direct basis. 2. Entitlement to service connection for bronchitis The Veteran seeks service connection for bronchitis. In favor of his claim, the Veteran asserts that he has multiple instances of bronchitis annually and that he was treated for bronchitis while in service. See NOD. The Veteran’s service treatment records (STRs) and post-service medical records have been associated with the claims file. The Veteran’s post-service medical records show multiple instances where the Veteran has complained of bronchitis. Most recently, in February 2019, he was diagnosed with bronchitis. See medical records for February 2019. Accordingly, the Veteran’s claim surpasses the first prong of the Shedden service connection test, a current disability. In his NOD, the Veteran asserted that while in service he was exposed to a multitude of solvents and metal dust in the repairs of aircrafts. He believes these exposures contributed to his constant respiratory conditions. The Board finds that while the Veteran is competent to describe the circumstances of his service, such as being exposed to solvents and metal dust, he is not competent to provide a medical opinion regarding how these exposures could have contributed to his current disability. Thus, the Board assigns high probative value to the Veteran’s statements regarding his exposure to solvents and metal dust in service. However, the Board is unable to afford any probative value to his statements about how the exposure caused his current disability. The Veteran’s STRs show that in March 1981, February 1986 and December 1987 he was diagnosed with or assessed as having bronchitis and was prescribed medication. See STRs for March 1981, February 1986 and December 1987. Accordingly, the Veteran’s claim surpasses the second prong of the Shedden service connection test, an in-service incurrence. Now, the question that remains before the Board is whether the Veteran’s bronchitis is etiologically related to service; the third prong of the Shedden service connection test. As previously noted, in December 2015, two private medical opinions were associated with the claims file. The Veteran’s private physician Dr. S, in a medical letter dated October 2015, opined that after reviewing the Veteran’s service treatment records (STRs) and his post-service medical records, that the Veteran’s bronchitis is highly likely in part related to his exposure to toxic chemicals, dust and solvents in service. See medical letter by Dr. S, dated October 2015 and associated with the claims file in December 2015. Another private medical opinion by Dr. T, dated December 2015 noted the Veteran’s lack of history of the condition prior to service, his report of in-service exposure to toxic chemicals, dust and solvents, and opined that from his evaluation, and after a review of the Veteran’s medical records, the Veteran’s respiratory issues, including bronchitis, appeared to be more likely than not associated with his time in service. See medical letter by Dr. T, dated December 2015 and associated with the claims file that same month. In August 2016, the Veteran was administered a Respiratory Conditions Disability Benefits Questionnaire (Respiratory DBQ) where a diagnosis of chronic bronchitis was noted. See Respiratory DBQ of June 2016, associated with the claims file in August 2016. Following the examination, the examiner opined that the Veteran’s bronchitis is less likely than not incurred in or caused by the Veteran’s service. In favor of this opinion, the examiner noted that while it was plausible that the Veteran’s bronchitis was incurred during service when the Veteran was exposed to toxic aerosols when cleaning airplane machinery, he was unable to find supportive evidence of medical visits of the Veteran having low respiratory issues during his first enlistment period. The examiner also noted that there was much evidence found regarding the Veteran’s upper respiratory issues such as sinusitis, rhinitis and upper respiratory infections (URIs) but these conditions were not the same as a lower respiratory obstructive condition such as chronic bronchitis. See medical opinion of June 2016, associated with the claims file in August 2016. The Board notes this medical opinion is not adequate as it relies on the absence of contemporaneous medical evidence to substantiate a negative opinion. However, this opinion does note that it is possible that the Veteran’s bronchitis was incurred in service due to the Veteran’s exposure to toxic aerosols. Accordingly, and in consideration of the private medical opinions of record referenced before, the Board finds that sufficient evidence has been presented providing a medical nexus between the Veteran’s bronchitis and his service. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bronchitis is etiologically related to service. Resolving doubt in the Veteran’s favor, the Board finds that service connection for bronchitis is warranted on a direct basis. 3. Entitlement to service connection for bilateral otitis media The Veteran seeks service connection for otitis media with effusion. In support of this claim, the Veteran asserted that he was treated for this condition while in service and that he still suffers from the condition. See NOD. The Board notes that “otitis” is defined as “inflammation of the ear, often with pain, fever, hearing loss, tinnitus, and vertigo”; “Otitis externa” is defined as “inflammation of the external auditory canal.” Dorland’s Illustrated Medical Dictionary 1371 (31st ed. 2007). “Otitis media” is defined, in pertinent part, as “inflammation of the middle ear.” Dorland’s at 1372. Bruzek v. Shinseki, No. 07-3281, 2009 U.S. App. Vet. Claims LEXIS 363, at *1-2 (Vet. App. Mar. 17, 2009). The Veteran’s post service treatment records show that in February 2015, the Veteran sought medical treatment for right ear pain that had lasted for 48 hours. The physical examination revealed obscured landmarks in the right ear with erythema (redness) of the tympanous membrane (TM) noted and moderate postnasal drip (PND) with pharyngeal cobblestoning evident; as well as enlarged nasal turbinates. Diagnoses of otitis media with effusion and allergic rhinitis were noted. See medical records for February 2015. In March 2015, the Veteran again sought medical treatment. The physical examination revealed that his right TM was retracted but not red, while his left TM was red and retracted. The Veteran’s nostrils (nares) were red, his turbinates were swollen, mucopus was noted and his throat was red with no exudate. The impression was noted as otitis media and left eustachian tube dysfunction. The Veteran was prescribed doxycycline for 2 weeks, prednisone, and afrin nasal sprays. See medical records for March 2015. The Veteran’s STRs show that in March 1978 he was treated for earache and some bleeding from the left ear. Upon examination, the physician noted mild external canal scaling and crusted blood. A diagnosis of mild otitis externa was rendered. See STRs for March 1978. In July 1978, the Veteran sought medical treatment for his blocked left ear. Upon examination, the physician noted that the Veteran’s TM was retracted and inflamed. A diagnosis of otitis media was rendered. See STRs for July 1978. In March 1985, the Veteran’s STRs show that he had fluid in his left ear. See STRs for March 1985. In August 1989, the Veteran sought medical treatment for left ear pain and reported he felt his ear “full.” The examination revealed dull TM and a slight erythema. The assessment was noted as left otitis. See STRs for August 1989. In June 2016, the Veteran was administered an Ear Conditions (Including Vestibular and Infectious Conditions) Disability Benefits Questionnaire (Ear DBQ). In this examination, diagnoses of peripheral vestibular disorder as well as benign paroxysmal positional vertigo (BPPV) were noted. The Veteran’s reports of otitis media beginning in service were noted, as well as his reports of progressive hearing loss, ringing in the ears, and ear infections which made him unable to wear hearing protection on the flight line. The Veteran also reported that the condition had worsened with ongoing ringing in the ears, hearing loss and recurrent ear infections. No findings, signs or symptoms attributable to chronic ear infection, inflammation and cholesteatoma were noted other than the Veteran’s hearing impairment and tinnitus (ringing in the ears). In the remarks section, the examiner noted that no diagnosis of otitis media was made on the examination because the condition had resolved. See Ear DBQ of June 2016, associated with the claims file in August 2016. Following this examination, the examiner opined that the claimed condition was less likely than not related to the Veteran’s service because the claimed condition of otitis media was treated once and resolved and there was no active finding of the condition on the examination. See medical opinion of June 2016, associated with the claims file in August 2016. The Board finds this examination and medical opinion inadequate for adjudication purposes as they are based on erroneous factual premises and do not consider the Veteran’s lay statements and symptomatology. First, the Board notes the examiner neglected to note that the Veteran had been treated for similar conditions in service, more than once, and did not note how he was treated and diagnosed with otitis media and eustachian tube dysfunction in 2015, during the appeal period. Additionally, the examiner determined that the Veteran did not have a diagnosis of otitis media on the day of the examination but did not consider the recurrent nature of the condition as reported by the Veteran. The Board notes that the Veteran’s private physicians, Dr. S and Dr. T, both noted the Veteran’s condition of otitis media in their medical opinions and both opined that this condition was related to the Veteran’s service. See medical letter by Dr. S, dated October 2015 and medical letter by Dr. T, dated December 2015, both associated with the claims file in December 2015. The Board finds these medical opinions adequate and affords them high probative value. Relevant to the present claim, the Board notes that the first prong of the Shedden service connection test requires a current disability. The current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As previously noted, the Veteran was diagnosed with otitis media in 2015, during the appeal period. Accordingly, notwithstanding the examiners opinion that the Veteran did not have a diagnosis of otitis media at the time of the June 2016 examination, the Board finds that the first prong of the Shedden service connection test has been surpassed, in light of Romanowsky. Ante. The Board also notes the Veteran’s record reflects that his ear condition affects both of his ears; although not necessarily at the same time. Thus, in consideration of the record, the Board has recharacterized the Veteran’s claim as service connection for bilateral otitis media with effusion. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s claim of service connection also surpasses the second prong of the Shedden service connection test, as he was treated for disorders of the ear while in service, including otitis media. Although the Veteran’s STRs do not reflect the exact diagnosis of “otitis media with effusion,” as claimed by the Veteran; they do in fact surpass the in-service incurrence as they support the Veteran’s assertions of having ear issues since service. Additionally, the Board finds that the Veteran’s claim also surpasses the third prong of the Shedden service connection test, as the Veteran’s condition of otitis media has been medically linked to his service by his private physicians. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of bilateral otitis media and whether such condition is etiologically related to his service. Resolving doubt in the Veteran’s favor, and in consideration of the Veteran’s lay statements regarding recurrent ear infections, as well as the available medical evidence; the Board finds that service connection for bilateral otitis media is warranted, on a direct basis. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran seeks service connection for hearing loss. In favor of his claim, the Veteran asserts that his hearing loss is related to hazardous noise exposure while working on the flight line during service. See NOD. The Veteran’s DD214s show his military occupational specialty (MOS) as a tactical aircraft maintenance technician. The Duty MOS Noise Exposure Listing indicates that this MOS has a high probability of exposure to hazardous noise. The Board finds that the Veteran’s statements about in-service noise exposure are consistent with the circumstances of his service and there is no reason to doubt the credibility of his statements regarding military noise exposure. Thus, in light of the Veteran’s MOS high probability of exposure to hazardous noise, as well as his credible and competent statements regarding exposure to noise in service, the Board concedes the Veteran’s in-service incurrence of noise exposure in service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In May 2016, the Veteran was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ). The objective findings noted in this Hearing Loss DBQ show the Veteran has hearing loss in his left ear for VA purposes but not in his right ear- although the Veteran’s right ear shows some level of hearing impairment. The Veteran’s speech recognition scores using the Maryland CNC Test was 100 percent for both ears. See Hearing Loss DBQ of May 2016. Following the examination, the examiner opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service. In favor of this opinion, the examiner noted that the Veteran’s hearing levels were normal with no significant threshold shifts at separation from service. See Hearing DBQ of May 2016. The Board finds this medical opinion inadequate as the examiner’s rationale was based solely only on the Veteran’s pre-induction and separation audiograms and did not consider delayed-onset hearing loss. Hensley v. Brown, 5 Vet. App. 15, 159 (1993). Furthermore, the opinion is inadequate for adjudication purposes, as the examiner did not take into consideration the Veteran’s lay statements regarding in-service exposure nor his MOS when providing the rationale. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran’s medical records show that in April 2017, the Veteran requested an appointment with an audiologist, as he felt his hearing loss was worsening. See medical records for April 2017. It is unclear from the available medical records whether the Veteran was eventually scheduled an appointment to see the audiologist. Accordingly, the Board finds a remand is necessary to afford the Veteran a new examination for his hearing loss and to obtain a new medical opinion that considers the Veteran’s conceded noise exposure in service as well as his lay statements. Additionally, the Board notes that the Veteran has been granted service connection for otitis media and that in the Ear DBQ of June 2016, the Veteran reported symptomatology of hearing loss which he considered associated to his condition of otitis media and frequent ear infections. Thus, the examiner is also requested to address whether the Veteran’s current hearing loss is caused by or aggravated by his service-connected otitis media. The matters are REMANDED for the following action: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Schedule the Veteran for a new examination regarding his hearing loss and obtain a new medical opinion addressing the etiology of the condition. The examiner is asked to opine: a. Whether the Veteran’s hearing loss is at least as likely as not related to his service, to include his conceded hazardous noise exposure in service. b. If the examiner determines that the Veteran’s hearing loss is not at least as likely as not related to the Veteran’s service; the examiner is asked to opine whether the Veteran’s hearing loss is caused by or aggravated beyond its natural progression by his service-connected otitis media. The examiner must opine on both causation and aggravation. If aggravation is found, the examiner must try to describe the baseline disability prior to it. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.