Citation Nr: 21028919 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-40 730 DATE: May 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for exercise-induced asthma is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected allergic rhinitis, is remanded FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss that meets VA criteria for disability. 2. Tinnitus did not manifest in service or within one year of service and is not otherwise attributable to service. 3. A December 1986 enlistment physical examination was silent for any reported symptoms or diagnoses of asthma and the Veteran is presumed sound at entry; a July 1987 comment of a pre-service history of asthma is insufficient to rebut the presumption of soundness. 4. Symptoms of asthma were not noted during Air Force active duty, Army Reserve or active duty service. 5. The Veteran's current asthma onset after service and was not caused by any aspect of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for exercise-induced asthma have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.306 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from February 1987 to September 1987 as an apprentice security specialist, and in the United States Army from January 1997 to October 1999 as an automated logistical specialist. The Veteran also had Reserve service. In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The claims file contains a copy of the hearing transcript. Service Connection The Veteran asserts that bilateral hearing loss, tinnitus, and exercise-induced asthma were incurred in, aggravated by, or otherwise attributable to, service. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and clear and unmistakable evidence that it was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including diseases of the nervous system such as bilateral sensorineural hearing loss and tinnitus, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") To the extent that tinnitus is capable of lay observation, the Veteran is competent to report her symptoms. Evidence Bilateral hearing Tinnitus In the Veteran's September 1987 separation report of medical examination, a clinician reported normal clinical evaluations of the ears; drums; lungs and chest; and neurological status. In this report, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 5 0 0 0 0 In the associated separation report of medical history, the Veteran indicated that she had not had, and did not have hearing loss. In a September 1991 applicant prescreening medical history form, the Veteran indicated that she did not have ear trouble or loss of hearing. In a December 1991 Reserves report of medical examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 5 0 0 0 0 In her December 1991, report of medical history, the Veteran indicated that she had not had and did not have hearing loss. In an October 1994 health history report (for a local community college), the Veteran indicated that she did not have hearing problems. In a December 1996 enlistment report of medical examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 0 0 0 LEFT 5 0 0 0 0 In her December 1998 enlistment report of medical history, the Veteran reported that she had not had and did not have hearing loss. In a March 1999 audiogram, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 0 0 0 0 0 In an April 1999 report of medical examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 0 0 0 0 0 An August 2002 same day surgery report from Maryland VA HCS discloses that the Veteran's bilateral hearing was within normal limits (WNL). Other records from this facility show no complaints or treatment for either BHL or tinnitus. In December 2014, Dr. M., a private ENT physician, reported that the Veteran complained of hearing a pulse in her left ear, which was bothersome and constant. The Veteran endorsed hearing loss and ringing noise in her ears. Dr. M. indicated a suspicion of dehiscent left intracranial abcess (ICA). Upon examination, Dr. M. indicated a normal clinical evaluation of the external ears; otoscopic status; right external auditory canal; right tympanic membrane; left external auditory canal; left tympanic membrane; and bilateral pneumatic otoscopy. There was no clinical evidence of lesions, retractions, or perforations. associated computer tomography (CT) scan was negative for any abnormalities of the temporal bones. Dr. M. reported normal bilateral hearing acuity in pure tones. There was bilateral WRS discrimination of 90-to-100 percent. In July 2016, the Veteran failed to appear for a VA BHL and tinnitus examination. In her August 2016 notice of disagreement (NOD), the Veteran stated that she could not report for VA examinations for BHL and tinnitus due to family illness. The Veteran reiterated her NOD contentions in her August 2017 substantive appeal (VA Form 9). The Veteran's chronology of treatment at the Darnell-Hood AMC facility provides no evidence as to complaints or treatment for bilateral hearing loss or tinnitus. At the March 2020 Board hearing, the Veteran testified that she has spongy material like Swiss cheese holes in her bilateral ears. The Veteran also reported that she hears a hum that began in 1997-98. In January 2021, the Veteran reported for a VA hearing loss and tinnitus examination. An audiologist reviewed the claims file; considered the Veteran's lay account of her audiological history; and conducted an appropriate evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 5 5 LEFT 10 10 10 15 10 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The audiologist reported that the Veteran's bilateral sensorineural hearing was normal. The audiologist indicated that bilaterally there was neither mixed hearing loss; sensorineural hearing loss at any tested frequency range of Hz; nor significant changes in hearing thresholds in service. The audiologist indicated that the Veteran did not endorse that claimed BHL functionally impacts her ordinary conditions of life, including her ability to work. See Martinak, 21 Vet. App. 447. The audiologist indicated that the Veteran reported recurrent tinnitus, which began in 1998-89 during her service in a motor pool. Specifically, the Veteran endorsed constant pulsatile tinnitus ("heartbeat in the ears"). Here too, the audiologist indicated that the Veteran did not endorse that pulsatile tinnitus functionally impacted her ordinary conditions of life, including her ability to work. The audiologist found that the Veteran did not have current bilateral hearing loss. As such, the audiologist could not render an etiological opinion as there is no current disability. As to pulsatile tinnitus, the audiologist indicated that the Veteran's current pulsatile tinnitus was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this negative nexus opinion, the audiologist opined that pulsatile tinnitus can be a symptom of superior canal (SC) dehiscence, can be related to issues with blood pressure, or can be related to other underlying health issues. Even though the Veteran was exposed to military noise, pulsatile tinnitus is not a medically known symptom of acoustic trauma due to noise exposure. A review of the Veteran's treatment records discloses that she has always reported tinnitus to be pulsatile in nature. Dr. M. had diagnosed left ear pulsatile tinnitus in 2015. Exercise-induced asthma In a December 1986 enlistment pre-screening questionnaire, the Veteran reported only a history of appendicitis and the use of corrective lenses. In a December 1986 enlistment physical examination, the Veteran denied a history or current asthma and not respiratory abnormalities were noted. Therefore, the Veteran was presumed to be sound at entry on active duty. In a July 1987 notation, a clinician indicated that the Veteran had a history of asthma, but no current problems associated with it. In the Veteran's September 1987 separation report of medical examination, an extensive physician's summary indicated "asthma secondary to exercise," first diagnosed in August 1985, treated with an inhaler, and currently asymptomatic. The Veteran responded affirmatively to having a history of asthma but did not report current symptoms. Pulmonary function studies at this time were completely normal. In a September 1991 applicant prescreening medical history form, the Veteran reported that she did not have asthma of respiratory problems. In a December 1991 Reserve report of medical examination, a clinician indicated a normal clinical evaluation of the Veteran's lungs and chest. In the report of medical history of the same date, the Veteran indicated that she had not had and did not have asthma. In a Reserve service treatment record (STR) of May 1994, the Veteran reported that she had "exercise-induced asthma." In an October 1994 health history report (for a local community college), the Veteran indicated that she did not have asthma. In a June 1996 occupational health screening questionnaire, the Veteran reported that she did not have asthma. In a December 1996 enlistment report of medical examination, a clinician reported a normal clinical evaluation of the Veteran's lungs and chest. In February 1997, the Veteran complained of daytime coughing which worsened at night. A clinician diagnoses sinusitis. Upon evaluation of March 1999 x-ray imaging, a radiologist wrote that the Veteran's lungs were fully inflated and free of masses, edema, and/or infiltrate. Pleural recesses did not contain fluid and there was no presence of pneumothorax. Consequently, the radiologist provided a normal physical assessment of the Veteran's chest. In an April 1999 report of medical history, the Veteran indicated that she had not had and did not have asthma. In an April 1999 report of medical examination, a clinician indicated a normal clinical evaluation of the Veteran's lungs and chest. In Physical Evaluation Board Proceedings (PEB) of July 1999 and an associated Medical Evaluation Board (MEB) of the same month, clinicians and military adjudicators noted present disabilities of bipolar disorder, considerable; plantar fasciitis, left foot; and left shoulder pain with multidirectional instability. At this time, a military clinician opined that the Veteran complained of lack of sleep and insomnia. Upon physical examination, tympanic membranes were normal; lungs were clear to auscultation and percussion bilaterally. The August 2002 same day surgery report from the Maryland VA HCS disclosed a history of asthma. In July 2002, the Veteran reported to the HCS emergency room (ER) for asthma and a 24-hour period of restlessness. The Veteran reported that her anti-psychotic medication calms her down. A review of other records from this facility fail to show complaints or treatment for asthma. In a January 2003 nursing assessment, the Veteran indicated that she had a history of asthma. In December 2014, Dr. M. indicated that the Veteran's breathing was unlabored. In another December 2014 treatment record, a private pulmonologist indicated that the Veteran had a minimal obstructive lung defect. However, the Veteran's respiration was symmetrical and respiratory effort appeared normal. In a February 2015 discharge summary, a clinician noted evaluation for anemia, asthma, and several psychiatric disorders. The clinician diagnosed and the Veteran received iron supplements. As to etiology, a treating clinician opined that is more likely to be gynecological, as derived from ultrasound and laboratory results In March 2015, VA received 2014-15 chronological record of the Veteran's medical care at RC Medical Clinic. This record shows allergies to codeine, mushrooms, palm oil, coconut oil, coconut, and egg protein. A clinician opined that the Veteran had no objective pulmonary symptomatology. A 500-plus page printout of the Veteran's medical record through August 2015 discloses extensive treatment for psychiatric, left shoulder, gynecological, and left foot issues. Allergic notations addressed coconut, coconut oil, codeine, egg protein, mushrooms, and palm oil. Problems listed as active included snoring, limb weakness, lower back pain, backaches, sinusitis, asthma, anemia, and obesity. The Veteran conveyed these problems. Upon review of these extensive clutch of records, the Board finds a notation concerning "periods of not breathing when sleeping." In her August 2016 NOD, the Veteran wrote that she received a diagnosis of exercise-induced asthma while on active duty. After this diagnosis (and others), the Veteran reported that she was prohibited from engaging in exacerbating activities. In a truncated form, the Veteran reiterated her NOD contentions in her August 2017 substantive appeal (VA Form 9). A review of the Veteran's VA treatment records reveals that her medication roster was followed. Clinicians also tracked the Veteran's complaints and accounts of treatment. Moreover, the Veteran was afforded consultations, laboratory services, and imaging services. The Veteran's chronology of treatment at the Darnell-Hood AMC facility discloses that clinicians noted mild intermittent asthma. At the March 2020 Board hearing, the Veteran testified that she was first diagnosed with asthma during training. The Veteran also stated that she believed that solvent exposure during active duty made her asthma worse. A review of 2020 VA treatment records reveals that clinicians noted a history of asthma. In January 2021, the Veteran reported for a VA respiratory examination. A clinician reviewed the claims file; considered the Veteran's lay account of her medical history; and conducted an appropriate evaluation. The clinician indicated a current diagnosis of asthma, which did not impact the Veteran's ability to work. After careful contemplation of the totality of evidence, to including findings from the instant examination, this clinician opined that the Veteran's exercise-induced asthma, which clearly and unmistakably, pre-existed service was clearly and unmistakably not aggravated (beyond its natural progression) by service. This clinician provided an extensive rationale for this negative nexus opinion. The Veteran's September 1987 discharge examination ("separation report of medical examination") indicates that the Veteran had a form of asthma secondary to asthma first diagnosed in August 1985 (prior to service). The clinician indicated that this was the only clinical report of asthma during active duty service, and the Board finds that this was only a reported history as no current symptoms were reported or observed. No other STRs disclosed any symptoms of asthma during the Veteran's periods of service. In her March 1999 separation report of medical history, the Veteran denied that she had asthma. Only medical records from July 2009 to January 2015 show any treatment or mention of asthma. As such, treatment occurred more than a decade after the Veteran's separation. Consequently, the clinician opined that a nexus cannot be established on any basis as the evidence of record simply does not support such exacerbation. Analysis Audiometric test results show that the Veteran does not have a bilateral hearing loss that meets VA criteria for disability. The Veteran is competent to report discernable symptoms and reports that she has heard. The Board has considered this testimony and lay evidence. 38 C.F.R. § 3.159(a)(2). Nevertheless, the evidence of record fails to disclose that Veteran has the highly specialized training in audiology and medicine to render a complex medical opinion as to aggravation or etiology. 38 C.F.R. § 3.159. Consequently, this lay evidence does not constitute competent clinical evidence. In the absence of proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. 223. The pertinent medical evidence is summarized above. The competent January 2021 audiologist, in whom the Board places substantial probative weight, has not provided a current diagnosis of BHL. Moreover, the evidence does not support a finding that the Veteran suffers from any symptomatology associated with this claimed disability that results in identified functional impairment. C.f., Saunders v. Wilkie, 866 F. 3d 1356 (2018). Thus, service connection for BHL is not warrant on either a direct or a presumptive basis. See Shedden, 381 F. 3d 1163; see also 38 C.F.R. §§ 3.307, 3.309. While the evidence of record shows that the Veteran has current pulsatile tinnitus, the weight of evidence is against finding an in-service incurrence or cause. The Board notes that to the extent that tinnitus is capable of lay observation, the Veteran is competent to report her symptoms. Charles, 16 Vet. App. 370. However, the clinical evidence of record (namely Dr. M.'s records and the January 2021 VA clinician's report) disclose that the Veteran's self-endorsed pulsatile tinnitus has no etiological association with miliary noise exposure or any form of acoustic trauma; rather, this medically recognized "form" of tinnitus can be related to issues with blood pressure or can be related to other underlying health issues. And, a review of the evidence fails to disclose that the Veteran reported tinnitus during service or upon separation from service. The Veteran's earliest complaint of pulsatile tinnitus dates from December 2014, when Dr. M. indicated a suspicion of left SC dehiscent. Thus, service connection for tinnitus is not warranted on either a direct or a presumptive basis. See Shedden, 381 F. 3d 1163; see also 38 C.F.R. §§ 3.307, 3.309. With respect to the claim for service connection for asthma, the disorder was not noted during the December 1986 enlistment examination. Notwithstanding the Jul 1987 report of a pre-service history of asthma, the Veteran is presumed sound at entry and there is no lay or medical evidence of asthma symptoms or a diagnosis during the five months of Air Force service. The December 1991 National Guard enlistment examination is silent for any history or current asthma. From 1991 to 1998, the Veteran repeatedly reported no asthma. The file does not contain an examination at the start of Army active duty, and the medical evaluation board at discharge was also silent for asthma. The weight of evidence is against granting service connection for exercise-induced asthma. Neither the Veteran nor her representative have submitted evidence which supports her assertion that exercise-induced asthma onset during or was caused by any aspect of active duty. The single report of pre-service history of asthma starting in 1985 is insufficient to rebut the presumption of soundness, and no chronic asthma symptoms or diagnoses were noted during Army Reserve or active duty. The Board assigns significant probative weight to the January 2021 VA respiratory conditions clinician's opinion. Notwithstanding the clinician's understanding that asthma pre-existed service, the July 1987 notation was only a mention of a reported history and not an in-service diagnosis. He did find no other reports of an onset or cause for asthma during service. This examiner reviewed the claims file; considered the Veteran's lay account of her audiological history; and conducted an appropriate evaluation. And, this clinician supported his opinion with an opinion with rationale, which underscores that the Veteran's exercise-induced asthma. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Consequently, the preponderance of evidence is against the Veteran's three service connection claims. As such, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Sleep apnea, to include as secondary to service-connected allergic rhinitis The Veteran asserts that sleep apnea was proximately caused by, or aggravated beyond its natural progression by, service-connected allergic rhinitis. In February 2021, a VA clinician provided a positive nexus opinion for allergic rhinitis. Consequently, the RO granted service connection for this disability in a March 2021 rating decision. While a February 2021 VA clinician opined that asthma, which remains non-service connected in any form, may affect obstructive sleep apnea (OSA), which the Veteran has, the clinician did not address the likelihood of OSA being proximately caused by, or aggravated by allergic rhinitis. The Board finds that this was not an oversight of the part of the clinician, rather a consequence of timing. Nevertheless, the Board finds that an VA addendum is necessary to address this theory of secondary causation/aggravation The matters are REMANDED for the following actions: 1. Contact the Veteran and her representative to ascertain whether there are any outstanding private records related to the Veteran's OSA. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. For any private records, should the Veteran or his representative provide an executed VA Form 21-2142 and an executed VA Form 21-4142a, the RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the such unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes, and examination reports. All efforts should be undertaken until all outstanding VA records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 3. Arrange for an addendum opinion with an appropriate clinician. The clinician must review the claims file and indicate such a review in the body of the examination report. Upon completion of this review, the clinician should respond to the following inquiry: a. Whether it is at least as likely as not (50 percent or more) that the Veteran's obstructive sleep apnea was proximately caused by, or aggravated by, service-connected allergic rhinitis. The clinician should keep in mind that the Veteran is competent to report her symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the audiologist reject the Veteran's reports, she/he must provide an explanation for such rejection. The clinician must provide complete, clearly-stated rationales for the conclusions reached. The clinician should include explanations that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.