Citation Nr: 21027491 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-39 052 DATE: May 5, 2021 ORDER Service connection for right ear hearing loss is granted. REMANDED Entitlement to an initial compensatory rating for left ear hearing loss is remanded. Entitlement to an increased rating in excess of 10 percent for tinnitus, on an extraschedular basis, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran's military occupational specialty (MOS) was as a welder; thus, his in-service exposure to significant noise is presumed and conceded. 2. The evidence is in relative equipoise as to whether the Veteran's right ear hearing loss is related to active duty. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the Navy from March 1973 to March 1977. The issues are on appeal from a March 2016 rating decision. In March 2021, the Veteran testified before the undersigned. A copy of the transcript is associated with the record. 1. Service connection for right ear hearing loss. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a)). For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board concludes that the Veteran has a current disability that is related to in-service acoustic trauma. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran seeks service connection for right ear hearing loss. Specifically, he contends it is due to acoustic trauma caused by his MOS as a welder and generally as a Navy shipman who was exposed to gunfire without hearing protection. Initially, the Veteran's medical records demonstrate a current disability of right ear hearing loss. Therefore, element (1) of Shedden/Caluza is met. With regard to an in-service event, the record shows that the Veteran was exposed to gunfire testing and acoustic trauma without hearing protection due to his MOS as a welder. Additionally, the Veteran has already been granted service connection for tinnitus and left ear hearing loss based on in-service noise exposure. As such, in-service acoustic trauma can be conceded and element (2) of Shedden/Caluza is also met. Thus, the question becomes whether the current disability is related to service. The Board finds that the evidence is in relative equipoise as to whether the Veteran's current right ear hearing loss is related to active duty. In other words, there is evidence both supporting and going against the claim of service connection for right ear hearing loss. The Veteran's DD-214 confirms that his MOS was as a welder. The Board finds the Veteran is competent to report on his experiences while on active duty and symptoms of right ear hearing loss. The Board also finds his statements are credible and entitled to probative weight, are they are consistent with other evidence of record. Although the February 2016 VA examiner opined that it was less likely than not that the Veteran's right ear hearing loss is related to his active duty, the examiner did not fully consider the acoustic trauma to which the Veteran was exposed to in service. While it is true that objective testing was within normal limits during service and the right ear did not demonstrate a threshold shift as the left ear did on his March 1977 separation evaluation, this does not account for the demonstrated functional impairment reported in lay evidence, including statements from the Veteran. However, this opinion, which is based on the finding of normal right ear hearing acuity at the time of separation from service, is of limited probative value because the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Considering the claim for service connection for right ear hearing loss in light of the record and governing legal authority, the Board resolves all reasonable doubt in the Veteran's favor and grants service connection for right ear hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensatory rating for left ear hearing loss is remanded. 2. Entitlement to an increased rating in excess of 10 percent for tinnitus, on an extraschedular basis, is remanded. The Veteran contends that his left ear hearing loss and tinnitus have worsened since his last VA examination in February 2016 and seeks increased ratings for each. His left ear hearing loss is currently rated as noncompensable and tinnitus is at 10 percent disabling, or the maximum schedular rating allowed. Regardless, the Veteran's tinnitus may warrant an extraschedular rating based on its current manifestations and functional effects. The Board notes the Veteran submitted a private audiological evaluation conducted in March 2019. However, the private audiological evaluation does not fulfill the current requirement for Maryland CNC speech recognition testing, nor is there any discussion as to the effects of the Veteran's audiological disabilities. Therefore, the Board does not find the private audiological evaluation as sufficient for adjudication purposes. Additionally, as the Board's decision to award entitlement to service connection for right ear hearing loss could significantly impact a decision on the issue of entitlement to an increased rating for left ear hearing loss (which would now be rated as bilateral hearing loss), a remand is required. On remand, the Veteran should be scheduled for a VA examination to assess the current nature and manifestations of his bilateral hearing loss and tinnitus. 3. Entitlement to COPD is remanded. The Veteran was afforded a VA examination for his COPD service connection claim in April 2015. He was diagnosed with COPD. The examiner acknowledged the Veteran's MOS as a welder and opined the COPD was less likely than not due to active duty because the Veteran had been a heavy smoker for many years. In his March 2021 hearing, the Veteran explained in more detail on the amount of asbestos he was exposed to while performing his MOS duties. Further, his MOS duties also exposed him to other substances such as metal fumes. The Veteran confirmed multiple times that he was a cigarette smoker and had been for many years. The Board notes that the April 2015 VA examiner's opinion is insufficient as it did not fully consider the possibility that the Veteran's current diagnosis of COPD was due to potential toxic exposure incurred during the performance of his MOS duties regardless of his history of smoking cigarettes. The examiner did not provide a rationale as to why the examiner found that the Veteran's COPD was due to cigarette smoking and not his active duty. Additionally, the April 2015 VA examiner did not have the opportunity to consider articles submitted by the Veteran's representative analyzing studies on lung function and respiratory exposure to toxic gases and metal fumes in welders. Finally, in his March 2021 testimony, the Veteran reported that he had sought treatment with private physicians and VA physicians from Big Springs VA Medical Center (VAMC) in the 1980's. His current file does not contain any attempts made by the regional office (RO) to obtain any private medical records from the 1980's and the earliest date of record from Big Springs VA Medical Center is October 30, 2014. On remand, the RO should attempt to retrieve and associate private and Big Springs VAMC medical records from the 1980's with the claims file. Subsequently, the RO should obtain an addendum medical opinion as to whether the Veteran's COPD is etiologically linked to his active duty from the April 2015 VA examiner or another examiner with appropriate expertise. The matters are REMANDED for the following action: 1. Retrieve medical records from Big Springs VAMC dated prior to October 30, 2014 and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for the private physician he sought treatment from for his COPD symptoms in the 1980's. Make two requests for the authorized records from the private physician unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss and tinnitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Consider the evidence now that the Veteran is service-connected for bilateral hearing loss and readjudicate the Veteran's claim of entitlement to an increased rating for hearing loss per relevant criteria listed at 38 C.F.R. §§ 4.85-4.86. 4. Obtain an addendum medical opinion from the April 2015 VA examiner who conducted the VA examination on his COPD. If the April 2015 VA examiner is unavailable, obtain an addendum medical opinion from another examiner with similar expertise. The need for another clinical evaluation is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to opine on whether it is at least as likely as not (i.e. 50 percent or greater) that the Veteran's COPD is due to active duty, to include exposure to asbestos, toxic gases, and metal fumes due to his MOS as a welder. The Veteran acknowledges his history of smoking cigarettes and although this should be considered by the examiner when formulating his/her/their opinion, it should not be the sole reason as to why a negative etiology opinion is submitted without sufficient explanation discussing all relevant etiological possibilities in full. The examiner must acknowledge and consider the articles submitted by the Veteran's representative analyzing studies conducted on lung function and respiratory exposure to toxic gases and metal fumes in welders. Any opinions offered should contain sufficient rationale. (Continued on next page) 5. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED