Citation Nr: 21024355 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-42 257 DATE: April 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a chronic respiratory disorder, to include emphysema and chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss disability is etiologically related to in-service noise exposure consistent with his combat service in Vietnam. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1966 to August 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in November 2014 and August 2018 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In August 2019, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. This case was previously before the Board in February 2020 when it was remanded for additional development. It has now returned to the Board for further appellate action. For clarity, the claim for a chronic respiratory disorder has been expanded to include COPD to better reflect the assertions and medical findings of record. See March 2020 VA examination report; see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). When the case was previously before the Board, the issues on appeal included entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Service connection for PTSD with major depressive disorder, and gambling disorder was granted by the AOJ in a March 2020 rating decision. The award of service connection represents a full grant of the benefits sought on appeal, and the claim for service connection for an acquired psychiatric disorder, to include PTSD is no longer before the Board. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). 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 Veteran contends that he experienced the onset of chronic bilateral hearing loss during active duty. He states was attached to an artillery battalion while serving in the Republic of Vietnam and that his unit was under mortar attack, and rocket and small arms fire. See August 2019 hearing transcript. He is competent to provide these reports. A hearing loss disability for VA purposes was demonstrated on VA examinations. Service records confirm that the Veteran served in the Republic of Vietnam. The Veteran has reported the onset of bilateral hearing loss during combat service in the Republic of Vietnam and the incurrence of a chronic bilateral hearing loss disability due to in-service injuries. In its February 2020 Remand, the Board conceded in-service noise exposure. See 38 U.S.C. § 1154 (b). The combat presumption contained within 38 U.S.C. § 1154 (b) not only applies to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154 (b) presumption to the Veteran’s claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, as the Veteran has reported the onset of bilateral hearing loss and a chronic disability during active duty, 38 U.S.C. § 1154 (b) also applies to his contentions regarding the onset of the disability during service. See Id. Section 1154 (b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. The Veteran maintains that he experienced a loss of hearing during service and his hearing loss has continued to the present day. He is considered competent to describe the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). Although VA examiners have issued opinions against the claim, the provided medical opinions are not accompanied by an adequate rationale and do not constitute clear and convincing evidence against the in-service incurrence of chronic bilateral hearing loss. The reports of a March 2020 VA examination largely repeats the same rationale as was provided in the July 2018 VA opinion, which was previously found to be inadequate by the Board. The March 2020 VA examiner acknowledged the Veteran’s service treatment records showed threshold shifts in both the Veteran’s right and left ears at separation. However, in opining that such was not noise related, the examiner stated that the Veteran’s service treatment records did not support a change in auditory function due to noise exposure. No other rationale was provided. The March 2020 VA examiner also did not discuss the significance of the Veteran’s military noise exposure to include exposure to artillery, tanks, and self-propelled 105 howitzers, and the Veteran’s report that hearing protection was used during his post-service occupation. The record also includes a May 2018 private treatment record indicating the Veteran has severe hearing loss “consistent with extreme noise exposure suffered in [the] military.” The Veteran has also provided competent and credible testimony that he experienced a loss of hearing during active military service. The Board will, therefore, resolve any doubt in the Veteran’s favor and finds that service connection is warranted for bilateral hearing loss in accordance with VA’s combat presumption and 38 U.S.C. § 1154 (b). REASONS FOR REMAND Entitlement to Service Connection for a Chronic Respiratory Disorder, to include Emphysema and COPD is Remanded. The Veteran asserts that his chronic respiratory disorder was caused by repeated pneumonia while on active duty in Vietnam. See June 2012 claim. During his August 2019 hearing, the Veteran further testified that he was continuously exposed to smoke off the artillery, and that dust was prevalent when the guns were firing. He also testified that he slept in damp conditions. The Veteran was most recently afforded a VA examination in March 2020. The examiner noted diagnoses of emphysema and COPD. The examiner indicated the Veteran’s emphysema was diagnosed in the 1970’s, and that COPD was diagnosed in 2020. She stated that emphysema is a form of COPD, and that the Veteran’s emphysema is predominantly responsible for reduced pulmonary function. She noted that shortness of breath and fatigue are symptoms of emphysema and COPD. When describing the history of the Veteran’s condition, the examiner wrote, “after exiting service the Veteran had shortness of breath. He had pneumonia a couple of times in service and again when he got out. He went on to have recurrent episodes of shortness of breath and was eventually diagnosed with COPD. He smoked 12-15 years, 1 ppd or less.” However, in the March 2020 VA medical opinion, the examiner concluded that the Veteran’s chronic respiratory disorder was less likely than not related to service. She stated, “there are no service treatment notes in pertinent records to indicate Veteran had any shortness of breath or abnormalities on pulmonary exam including that at the time of separation.” She added that the Veteran “smoked until August 2009 which is the most likely cause of his mild COPD and emphysema.” The Board finds this conclusion is confusing and at odds with the rest of the examination report suggesting the Veteran’s symptoms of chronic respiratory disorder, to include emphysema and COPD onset in service, or shortly thereafter. The March 2020 VA opinion is likewise inadequate because it relied on a lack of treatment records and failed to adequately consider the Veteran’s lay assertions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: Obtain a VA opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed chronic respiratory disorder, to include emphysema and COPD. An examination should be scheduled only if such is deemed necessary. After reviewing the claims file, to include a copy of the Remand herein, the examiner should provide an opinion addressing: a. Whether there is any evidence to accept or reject the proposition that the Veteran experienced a chronic respiratory disorder in service. b. Whether it is at least likely as not that the Veteran’s chronic respiratory disorder, to include emphysema and COPD had its initial onset in service or is otherwise etiologically related to the Veteran’s active service. c. If no such relationship is found, the examiner is asked to identify what symptoms would have been caused by the presently claimed emphysema and COPD but were not evident in service or proximate to the Veteran’s service discharge. The Veteran’s lay statements regarding the onset and continuity of symptomatology since onset and/or since separation from service must be addressed. A rationale must be provided for all opinions expressed. If any opinion cannot be provided without resorting to speculation, the practitioner should provide an explanation as to why that is so. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.