Citation Nr: 21021572 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-28 284 DATE: April 13, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s respiratory disorder began during active service, or is otherwise related to an in-service injury or disease. 2. Throughout the appeal period, the Veteran had no worse than Level II hearing acuity in the right ear, and no worse than Level II hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from April 1971 to February 1972. In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2020, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for a new VA medical opinion regarding the Veteran’s respiratory disorder. The Board remand also requested the AOJ to a obtain a copy of a VA audiology examination report, or to provide a new examination. The record now contains a June 2020 VA respiratory opinion, and a January 2021 VA audiology examination report. There has been substantial compliance with the remand directives and the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) The Veteran contends that he suffers from a respiratory disorder related to service. At the January 2020 hearing, the Veteran testified that he was exposed to dust and dirt while operating heavy equipment, and to fumes from black tar and jet engines while working at an Air Force base. During service, the Veteran’s service treatment records (STRs) show treatment for an upper respiratory infection with pharyngitis (sore throat) in May 1971. The Veteran’s December 1971 separation examination revealed normal findings for the lungs and chest. After service, private medical records show treatment for COPD, pulmonary nodules, and effects of tobacco use. Private treatment records throughout the period from 2012, 2013, and 2014 note that the Veteran was still smoking. A private treatment record from November 2016 notes that the Veteran was smoking a half of a pack of cigarettes per day. In March 2017, a VA examiner diagnosed the Veteran with COPD. The March 2017 VA respiratory examination report noted that the Veteran currently smokes one pack of cigarettes daily. The examiner attributed the Veteran’s COPD to his significant history of smoking, which is still ongoing, and not to exposure to environmental hazards during service. At the January 2020 hearing, the Veteran testified under oath that he does not currently smoke cigarettes, and has not smoked cigarettes in 25 to 30 years. The Veteran has submitted private treatment records dated in 2019 which contain diagnostic imaging that show nodules in the lungs. In April 2020, the Board remanded this matter for a new VA examination and medical opinion. The examiner was asked to address the Veteran’s lung nodules, and to consider the history of the Veteran’s smoking based on the Veteran’s statements and the objective medical history. Pursuant to the remand, a VA medical examiner reviewed the medical history contained in the Veteran’s e-folder in June 2020. The examiner noted an upper respiratory infection during service, but this did not occur in the lungs and was acute only. The examiner found no evidence of chronicity of care for a respiratory condition during active duty or at separation. The examiner further noted that COPD and lung nodules were not diagnosed until 2012. The examiner considered the Veteran’s testimony regarding his smoking, but found that medical records clearly show active smoking through at least 2015. The examiner noted that cigarette smoking is the number one cause of COPD. The examiner concluded that it is more likely that his cigarette smoking caused his COPD, as opposed to in-service exposure to environmental hazards. The examiner found that the lung nodules diagnosed in 2012 were benign and, per radiology findings, were inflammatory in nature. The examiner concluded that the nodules were most likely the result of prior infections, including bronchitis as noted in 2012, causing inflammation. The examiner noted that benign pulmonary nodules are 80 percent due to infection or the result of inflammation in the lung. The examiner concluded that a nexus between the Veteran’s current COPD and any in-service injury, disease, event has not been established. The examiner concluded that the Veteran’s COPD was less likely than not incurred in or caused by in-service exposure to environmental hazards. The Board acknowledges the lay statements made by the Veteran indicating that his COPD is related to service. The Veteran is competent to provide testimony concerning factual matters of which they have first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran reports that he has not smoked for the past 25 to 30 years, these statements are not credible as they are inconsistent with the VA and private medical evidence of record showing smoking from 2012 to 2016. The March 2017 VA examiner reviewed the Veteran’s medical history and conducted an interview and examination of the Veteran. The April 2020 VA examiner conducted a thorough review of the Veteran’s medical history. Their opinions were based on the specific facts of this case as presented in the record and by the Veteran at the March 2017 in-person examination. The examiners reviewed the record and provided appropriate rationales that are factually accurate, fully articulated, soundly reasoned, and supported by medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiners’ opinions as the most probative evidence as to whether it is at least as likely as not that the Veteran’s COPD is related to service. In sum, the competent evidence of record weighs against the Veteran’s assertion that his COPD was caused by exposure to environmental hazards during service, including dust, dirt, and fumes from black tar and jet engines. The VA examiners found no confirmed diagnosis of COPD until 2012. Based on the Veteran’s medical history, the examiners concluded that the Veteran’s current COPD is most likely related to his documented history of tobacco smoking. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 2. Entitlement to an initial compensable rating for bilateral hearing loss An April 2017 rating decision awarded the Veteran service connection for bilateral hearing loss, rated as noncompensable (zero percent disabling) under Diagnostic Code 6100, with an effective date of December 16, 2016. The Veteran contends that the severity of his bilateral hearing loss warrants a compensable rating. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The “puretone threshold average” as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The Board notes that the Veteran underwent a private audiology examination in November 2016. However, this examination was conducted prior to the period on appeal and the examination report did not contain any puretone threshold findings. Therefore, this November 2016 private audiology examination is not adequate for rating purposes. 38 C.F.R. § 4.85(a). During the March 2017 VA audiology examination, the Veteran reported that his wife hears things that he does not hear. On the authorized audiological evaluation in March 2017, puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 50 60 60 LEFT 20 20 60 55 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 in the left ear. The examiner noted that the puretone test results are valid for rating purposes, and that use of word recognition score is appropriate for this Veteran. The puretone threshold average in the right ear was 47.5, and the puretone threshold average in the left ear was 48.75. According to table VI, a numeric designation of II is obtained for the right ear, and a number designation of II is obtained for the left ear. The designations of Level II for the right ear and Level II for the left ear correspond with a noncompensable rating under Table VII. VA treatment records from June 2017 show that the Veteran was fitted for hearing aids. However, no puretone testing was conducted during the hearing aid fitting. The Veteran was provided with a new VA audiology examination in January 2021. During the January 2021 VA audiology examination, the Veteran reported that he experiences difficulty hearing when people talk to him, speech is not clear, and when there is background noise he feels he cannot hear at all. His hearing loss makes it hard to communicate with people, watch television, and perform daily activities. On the authorized audiological evaluation in January 2021, puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 70 70 75 LEFT 35 40 70 65 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 in the left ear. The examiner noted that the puretone test results are valid for rating purposes, and that use of word recognition score is appropriate for this Veteran. The puretone threshold average in the right ear was 65, and the puretone threshold average in the left ear was 61.25. According to table VI, a numeric designation of II is obtained for the right ear, and a number designation of II is obtained for the left ear. The designations of Level II for the right ear and Level II for the left ear correspond with a noncompensable rating under Table VII. The Board has considered the Veteran’s statements regarding the severity of his hearing loss. The Board finds that the Veteran is both competent and credible in his report of his hearing loss symptomatology. However, the rating criteria for hearing impairment is designed to consider the Veteran’s diminished hearing acuity, and as outlined above, the assignment of a disability evaluation on a schedular basis is a purely mechanical process based on audiometric test results. As such, based on the Veteran’s audiological examination, the Veteran’s hearing loss does not meet the criteria for a rating higher than that already assigned. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for an initial compensable rating for hearing loss must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.