Citation Nr: 21028122 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-04 319 DATE: May 10, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for pulmonary sarcoidosis is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's left ear hearing loss is etiologically related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's pulmonary sarcoidosis had its onset during service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for pulmonary sarcoidosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. He appeals a June 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for left ear hearing loss and pulmonary sarcoidosis. In January 2019, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. VA received a valid request for an additional hearing in March 2021. However, as the decision below grants service connection for left ear hearing loss and sarcoidosis, the Board finds no prejudice in proceeding with the issuance of a decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In August 2020 and April 2019, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss and sarcoidosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's DD-214 indicates that his military occupational specialty was as a helicopter mechanic, and that he is a recipient of the Vietnam Service Medal. His personnel records reflect that he participated in the Vietnam Counter Offensive Phase II, thus service in Vietnam has been established, and the Veteran is presumed to have been exposed to an herbicide agent. The Veteran testified that he worked as a helicopter mechanic during service, and that he worked on helicopters in Vietnam. He stated that he had to fly in each helicopter he worked on and that he was often exposed to the noise from helicopters without ear protection. He also stated that he was exposed to the fumes from helicopter fuel every time he changed fuel filters or refueled the helicopters. The Veteran reported that he began to develop a cough after approximately 4 to 5 months in service, and was told by medics that he had bronchitis. He stated that he was provided medication which was ineffective, and that when he came home the cough became worse, but he learned to live with it as the doctors did not know what was causing it. He indicated that he was subsequently diagnosed with sarcoidosis by a specialist after receiving a chest and back x-ray which was required for a job he had applied for after service in 1978. The Veteran reported that he had lung surgery which made the condition better, but the cough never subsided. He stated that he has had issues breathing and needs inhalers even for short walks. He reported breathing hard after walking about 50 feet, and indicated that since its onset in service, his symptoms have worsened. The Veteran testified that he noticed his left ear hearing loss after he returned home from Vietnam, stating he would have to turn his head to hear when talking to people, and turn up the television. He stated that he did not pay too much attention to his hearing while in Vietnam. He said that it has been ongoing and getting worse. The Veteran reported that after service, he did cement work for 5 or 6 years, then worked in a machine shop for 18 years where ear protection was mandatory. He stated that he was not the type of person who wanted to see doctors, or seek treatment. 1. Left Ear Hearing Loss The Veteran has left ear hearing loss for VA purposes. See June 2015 VA examination report. Additionally, the evidence confirms an in-service injury or event consistent with the circumstances of the Veteran's service as a helicopter mechanic. The remaining issue is whether there is a nexus between the current left ear hearing loss and the in-service noise exposure. After citing credible lay evidence that the Veteran's hearing loss worsened after being in the military, Dr. J.B. linked the Veteran's left ear hearing loss with noise exposure in service. See April 2019 Dr. J.B. medical opinion. Additionally, two VA examiners noted that "noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented. . . ." See September 2020 and January 2020 VA examination reports. Thus, in this particular case, noise exposure caused the Veteran's hearing loss. Therefore, the Board finds Dr. J.B.'s positive medical opinion, the VA examiners' conceded link between loud noise exposure and hearing loss, as well as the Veteran's credible continued hearing loss symptoms since service as probative to the nexus element. The evidence is thus at least evenly balanced as to whether the Veteran's left ear hearing loss is related to active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Pulmonary Sarcoidosis In a January 2015 letter, the Veteran's wife stated that the Veteran has had a cough and lung congestion since they were married in 1968. She stated that the Veteran had an operation in 1978 for sarcoidosis of the lungs, and that since then it has been hard for him to breathe, and he coughs and wheezes all of the time. She reported that it is hard for him to breathe if he walks up a small hill or a long distance. Additionally, in a January 2019 letter, the Veteran's brother-in-law reported that the Veteran has had a cough since 1968 which progressively worsened to the point that he needed to have surgery. He also stated that the Veteran's breathing is currently poor and has required several trips to the emergency room. The Veteran's service treatment records do not reflect treatment for pulmonary sarcoidosis or symptomatology associated with pulmonary sarcoidosis, and his November 1967 medical examination report upon discharge is normal. A January 2015 disability benefits questionnaire (DBQ) reflected that the Veteran had a history of occupational exposure to grinding dust, and progressively worse breathing. It also indicated that the Veteran had a history of pulmonary sarcoidosis starting at age 34. The examining physician noted that the Veteran's sarcoidosis was predominantly responsible for the limitation in pulmonary function. In January 2019, the Veteran submitted treatise material which reflected an association between exposure to aviation fuels used by the military and pulmonary interstitial fibrosis. In a January 2020 DBQ, the examining physician assistant (PA) opined that the Veteran's pulmonary sarcoidosis was less likely than not (less than a 50 percent probability) incurred in, or caused by an in-service injury, event or illness, stating that after a review of the medical records, the Veteran's sarcoidosis is less likely than not incurred in or caused by herbicide exposure in service. The PA also noted that the Veteran acknowledged onset of symptoms in the late 1970s, thus it is less likely that his sarcoidosis was due to exposure to herbicides, which is not a known cause, or that it started during service. Importantly, the DBQ indicated that the Veteran reported that his condition began with a nagging cough in 1966 and that he was treated with a lung operation in 1979. In an October 2020 DBQ, the examining nurse practitioner (NP) opined that the Veteran's sarcoidosis was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event or illness. The NP stated that there was no chronic diagnosis made while on active duty, and that the symptoms are subjective only. She noted that while the lay and buddy statements were considered, the Veteran is not capable of diagnosing the medical condition related to those symptoms. The NP reported that the service medical records are silent for medical evaluations, treatment, or a diagnosis of pulmonary sarcoidosis, and pulmonary sarcoidosis is not considered as a presumptive disease associated with exposure to an herbicide agent. She also noted that there is insufficient objective medical evidence supporting the conclusion that the condition is associated with herbicide agent exposure, and insufficient medical evidence in medical literature to determine whether there is an association between herbicide agent exposure and any significant disease involving immune suppression, allergy, autoimmunity or inflammation. The NP explained that the exact cause of sarcoidosis is unknown, but stated that there is insufficient objective medical evidence in medical literature to determine whether there is an association between engine/jet fuel exposure and any specific diseases or conditions. In November 2020, the Veteran submitted treatise material which indicated exposure to Agent Orange caused multiple health issues. The material also included an article regarding the signs and symptoms of sarcoidosis, indicating that the cause is unknown, but that experts think it results from the body's immune system responding to an unknown substance. In a December 2020 statement, the Veteran reported that while he had surgery in 1978 for pulmonary sarcoidosis, he did not start his grinding job until 1981 which was as a wet grinder where the grinding is done underwater with the water holding all the dust particles. He also stated that he had pulmonary complications in service, after service, and continues to have the pulmonary issue to this day. For the following reasons, the Board finds that entitlement to service connection for pulmonary sarcoidosis is warranted. The evidence of record reflects a diagnosis of pulmonary sarcoidosis, including, the DBQs and surgery in 1978 to treat pulmonary sarcoidosis, and the Veteran has reported suffering from symptoms of pulmonary sarcoidosis including a persistent cough during service which he is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the current disability and in-service disease requirements for service connection have been met, and the dispositive issue is whether there is a nexus between the two. The Veteran has competently stated that he has suffered from pulmonary sarcoidosis symptomatology since service, and there is no indication in the evidence of record that the Veteran's statements lack credibility. While the January 2020 PA and October 2020 NP opined that the Veteran's pulmonary sarcoidosis is less likely than not related to service, the January 2020 PA's opinion is inadequate as he failed to consider the Veteran's contentions regarding exposure to fuel as a helicopter mechanic in service, opining only as to the Veteran's exposure to an herbicide agent in Vietnam, and failed to acknowledge the Veteran's complaints of pulmonary sarcoidosis symptomatology in service prior to his lung operation in the 1970s. Additionally, the October 2020 NP based her opinion primarily on the fact that no diagnosis was made during service of pulmonary sarcoidosis, and no evidence of treatment, or medical evaluations during service, which is an impermissible basis upon which to show that pulmonary sarcoidosis is not related to service. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The examiner also did not consider the Veteran's testimony of being unsuccessfully treated by a medic during service, and the Veteran's statements that he learned to "live with it," which explains the lack of treatment records. Therefore, the October 2020 NP's opinion is inadequate and afforded no probative value. Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Further, lay testimony describing symptoms that are later diagnosed by a professional can be competent and sufficient to establish a diagnosis of the condition. 492 F.3d at 1377. Thus, symptoms described by the Veteran, his wife, and his brother-in-law were later confirmed to be attributable to sarcoidosis and required surgery a few years after service. The evidence is thus at least evenly balanced as to whether the Veteran's pulmonary sarcoidosis had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for pulmonary sarcoidosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.