Citation Nr: 21025034 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 20-17 019 DATE: April 27, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for hypertension is denied. Service connection for diabetes mellitus type 2 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s COPD was first demonstrated many years after service and is not etiologically related to a disease or injury in service. 3. The preponderance of the evidence is against finding that the Veteran’s hypertension and diabetes began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1952 to June 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in September 2020 where they were remanded for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hearing Loss The Veteran contends that his bilateral hearing loss is related to his service. Initially, the Board finds that the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. “[I]impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the Veteran’s speech recognition scores using the Maryland CNC Test were less than 94 percent. See January 2021 VA examination report. As such, the Board finds that the Veteran has a tinnitus and hearing loss disability for VA compensation purposes. Next, the Veteran’s military occupational specialty (MOS) was a paratrooper. See January 2021 VA examination (“Veteran was with 101st Airborne (Air Assault) as a paratrooper.”). His assertion of exposure to loud noise is consistent with the circumstances of his service and in-service noise is exposure is therefore conceded. See 38 U.S.C. § 1154(a). The Board also finds that the evidence of record does not establish any clinical manifestations of hearing loss or tinnitus to a degree of 10 percent or more within the applicable time period; as such, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. See 38 C.F.R. § 3.307 (a)(3). The Board next finds that symptoms of bilateral hearing loss have not been continuous since service separation. The Veteran first filed his claim for hearing loss in 2017 and the first evidence of treatment for hearing loss is found in VA treatment records dated in 2014, more than 55 years after service separation. The Board finds that this long lapse of time between service separation and a diagnosis of hearing loss is one factor that weighs against a finding that the Veteran’s bilateral hearing loss is related to service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). The Board next finds that the weight of the evidence demonstrates that the Veteran’s currently diagnosed bilateral hearing loss is not related to active service. A January 2021 VA examiner opined that the Veteran’s bilateral hearing loss was not related to an in-service injury, event, or disease, including his in-service noise exposure. The rationale was based on the significant length of time since the Veteran’s separation from service and the lack of evidence that the Veteran “complained of or sought treatment for hearing loss for decades post service.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no opinions of record to the contrary. The Board finds that the medical opinion discussed above is highly probative as to the etiology of the Veteran’s hearing loss. The examiner reviewed the claims file, discussed relevant medical evidence of record, and provided a rationale in support of the opinion. See Bloom, 12 Vet. App. 187; Hernandez-Toyens, 11 Vet. App. 382; Miller, 11 Vet. App. 348. The Board has also considered the Veteran’s statements purporting to relate his currently diagnosed hearing loss to in-service acoustic trauma. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Sensorineural hearing loss is a medically complex disease processes because of its multiple possible etiologies and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Such competent evidence has been provided by the VA audiologist who reviewed the Veteran’s claims file. Here, the Board attaches greater probative weight to the VA audiologist’s opinion than to the Veteran’s statements. See Cartright, 2 Vet. App. at 25. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. COPD The Veteran is seeking entitlement to service connection for COPD which he contends is related to his service. While VA treatment records show that there is evidence of current diagnoses of COPD, the weight of the competent evidence is against a finding that this disorder had its onset in or is otherwise medically related to service. The Veteran himself has not indicated why she believes that his COPD is related to service. While recognizing that the service treatment records are unavailable, the record does not otherwise show any symptoms of COPD having begun in service, or of persistent symptoms since service separation. The first evidence of a diagnosis of COPD is not shown until approximately 2015, many years following active duty service. Additionally, an October 2020 VA medical opinion indicated that the Veteran’s COPD was a result of tobacco abuse. The Veteran was noted to have smoked for approximately 30 years. The examiner also indicated that the “overwhelmingly most common etiology of COPD is tobacco abuse.” The Board finds that this opinion weighs against the Veteran’s claim. Moreover, with regard to the Veteran’s general contention that a medical nexus exists between his COPD and service, the matter of the etiology of this complex disorder is only within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to possess the appropriate medical training and expertise, he is not competent to render a probative (i. e., persuasive) opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether this disorder is etiologically related to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, with respect to her claimed disorder, his lay assertions with regard to etiology are not competent and carry no probative value here. In sum, the Board finds that the weight of the evidence demonstrates that COPD was not incurred in or otherwise caused by active service. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hypertension and Diabetes The Veteran seeks entitlement to service connection for hypertension and diabetes mellitus, which he contends are secondary to his COPD. See March 2018 letter. As determined herein, the Board finds that service connection is not warranted for hypertension or diabetes mellitus. There is no legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. Consequently, the Veteran’s claim for service connection for hypertension and diabetes must thus be denied as a matter of law because the Veteran is not service connected for the underlying COPD disability. 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board also finds that the evidence of record does not establish any clinical manifestations of hypertension or diabetes to a degree of 10 percent or more within the applicable time period; as such, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. See 38 C.F.R. § 3.307 (a)(3). The Board next finds that symptoms of hypertension or diabetes have not been continuous since service separation. The Veteran first filed his claim for hearing loss in 2017 and the first evidence of treatment for hypertension and diabetes is found in VA treatment records many decades following service separation. The Board finds that this long lapse of time between service separation and a diagnosis of hypertension or diabetes is one factor that weighs against a finding that the Veteran’s disorders are related to service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). The Board has also considered the Veteran’s statements purporting to relate his currently diagnosed hypertension and diabetes to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of these medically complex disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Hypertension and diabetes are medically complex disease processes because of their multiple possible etiologies and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for hypertension and diabetes, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.