Citation Nr: 21032460 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-00 457 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for Addison's disease, to include as due to herbicide exposure, is remanded. FINDING OF FACT The probative evidence of record does not show the Veteran's bilateral hearing loss is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from September 1966 to April 1970. In May 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claims were brought before the Board in September 2019 and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Entitlement to Service Connection: Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with bilateral hearing loss. Further, the Veteran's military records show he was an aircraft repairman during the Vietnam War and therefore, exposure to noise is established by the record. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event or injury and the present disability. See Sheldon v. Principi 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In January 2021, a VA opinion was obtained. The examiner opined that the Veteran's bilateral hearing loss is less likely than not incurred in or caused by the claimed in-service event or injury. The examiner noted that the Veteran's enlistment examination did not specify whether ASA or ISO-ANSI standards were used but testing in 1969 and at separation was specified to have used ISO-ANSI standards. The examiner explained that regardless of which standards were used on his enlistment examination, no significant permanent shift in hearing thresholds was noted between entrance and separation, which is objective evidence of no permanent auditory damage on active duty. The examiner stated that whether or not the Veteran's enlistment examination was conducted using ASA or ISO-ANSI standards, his thresholds at separation were found to be consistent with his enlistment examination. The examiner further explained that if his enlistment examination was conducted using the ASA standard, then after conversion, testing in 1969 would indicate a temporary threshold shift at 1 kHz in the left ear only and if it were conducted using ISO-ANSI standards, then a temporary threshold shift would be present during the 1969 testing from .5-2 kHz in the left ear and .5 kHz in the right ear. However, a temporary threshold shift is not uncommon when exposed to potentially hazardous noise and in the Veteran's case, his thresholds clearly returned back to his baseline following noise exposure, thus indicating there was no permanent auditory damage during his service in 1969. The examiner additionally found that there was no report of decreased hearing at separation, and that the Veteran reported noticing difficulty hearing in the late 1970s, which was several years after his service. The examiner concluded that although noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone, and therefore, a nexus is not established. The Board notes that a VA opinion was obtained in February 2011, which also found the Veteran's condition was not related to his active duty service. However, the Board has previously determined the opinion was inadequate and therefore, the Board will not be putting probative value to the opinion. The Board further notes that the Veteran has provided no medical evidence that relates his bilateral hearing loss to his active duty service. Therefore, the Board finds the January 2021 VA opinion to be of significant probative value in determining the Veteran's hearing loss is not related to his active duty service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner showed knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, and the evidence of record. Additionally, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board acknowledges the Veteran's assertions that he suffers from hearing loss that is related to his active duty service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any disability is present and/or related to his military service, requires medical expertise that the Veteran has not demonstrated hearing disorders can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board has also considered presumptive service connection for sensorineural hearing loss under 38 C.F.R. § 3.309(a) for organic diseases of the nervous system and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. To the extent that the Veteran asserts that he had hearing loss continuously since discharge from service, these statements are not credible as they are inconsistent with the overall evidence of record, including the Veteran's reports of first noticing difficulty hearing in the late 1970s. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is required to afford the Veteran every possible consideration. Entitlement to Service Connection: Addison's Disease The Veteran contends that his Addison's disease is related to his active duty service, to include as due to Agent Orange/herbicide exposure. The Board finds the VA opinion obtained in January 2021 is inadequate to fairly adjudicate the Veteran's claim for service connection. First, the January 2021 VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by his presumed Agent Orange exposure. The examiner rationalized that Addison's disease is not one of the diseases VA has found to be associated with herbicide exposure. The examiner then listed the conditions listed under 38 C.F.R. §§ 3.307, 3.309(e). The examiner did not provide any other rationale for why the Veteran's condition was not related to his presumed exposure to Agent Orange/herbicides. As noted in the Board's September 2019 remand, a disease not being listed under the 38 C.F.R. §§ 3.307, 3.309(e) does not preclude the Veteran from an opinion on whether the condition is directly related to herbicides/Agent Orange. Thus, the examiner should have provided a rationale that did not solely rely on the Veteran's condition not being a listed disease known to be caused by Agent Orange. Second, the examiner found that the Veteran's condition was also not related to his in-service diagnosis of pyelonephritis. In the examiner's rationale, the examiner rationalized that tuberculosis infection of the adrenal glands and inherited disorders of the endocrine glands are the primary causes of Addison's disease. The Board notes that the Veteran is service-connected for hypothyroidism, which is a disorder of an endocrine gland. Thus, a secondary opinion on whether the Veteran's Addison's disease is related to his service-connected hypothyroidism should have also been provided. As such, the Board finds that a remand is required in order to obtain a new opinion considering the above. The matters are REMANDED for the following action: Send the claims file to the examiner who provided the January 2021 opinion on the Veteran's Addison's disease. If the January 2021 examiner is not available, then the file should be sent to an appropriate examiner to determine the etiology of the Veteran's Addison's disease. If the examiner finds that the requested opinion cannot be provided without examination, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran's competent lay statements, as well as the Veteran's report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's Addison's Disease, had its onset during, or is otherwise related to, his active duty service, to include his presumed exposure to Agent Orange/herbicides? (b) If the Veteran's Addison's Disease is NOT directly related to his active duty service, is it at least as likely as not (50 percent probability or more) that the Veteran's Addison's disease is due to his service-connected hypothyroidism? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's Addison's disease is aggravated by his service-connected hypothyroidism? "Aggravation" is defined as any worsening beyond the natural progression of the disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.