Citation Nr: 21040154
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 15-22 560
DATE: July 2, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for hemorrhoids is granted.

Entitlement to service connection for respiratory disability, to include asthma, is denied.

FINDINGS OF FACT

1. The evidence of record does not show the Veteran with any hearing disability that meets the Department of Veterans Affairs (VA) criteria for compensation purposes.

2. Resolving reasonable doubt in the Veteran's favor, his hemorrhoids are related to active service.

3. The Veteran's complaints of respiratory symptoms have not been associated with any underlying diagnosis and are not otherwise accompanied by objective indications of a qualifying chronic disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.385.

2. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.156, 3.303.

3. The criteria for entitlement to service connection for respiratory disability, to include asthma, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in the U.S. Army from September 1999 to September 2009. The Veteran's service also included multiple deployments to Iraq in the early to late 2000s.

The matter came before the Board of Veterans' Appeals (Board) in November 2020, from a January 2014 rating decision issued by the VA Regional Office (RO). In May 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file.

The November 2020 Board decision found that the record contained new and material evidence sufficient to reopen the Veteran's service connection claims for bilateral hearing loss, hemorrhoids, and a respiratory disability, to include asthma. Therefore, the Board reopened the claims and subsequently remanded them for further development and new VA examinations to be conducted. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The three service connection claims are now up on appeal again. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issues at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection

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. §§ 1110, 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).

Service connection may also be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317 (a)(1). 

For purposes of 38 § C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). 

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5) (2019); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).

Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends he is due entitlement to service connection for his bilateral hearing loss. The Veteran's claim of service connection for bilateral hearing loss was reopened by the Board in November 2020, due to new and material evidence. 38 U.S.C. § 5108; see Evans v. Brown, 9 Vet. App. 273, 285; see also Shade v. Shinseki 24 Vet. App. 110, 117 (2010). 

The new and material evidence came in the May 2019 Board hearing testimony, in which the Veteran claimed his work in and around Blackhawk helicopters in service contributed to his hearing loss. The Board concedes that the Veteran's job as a Blackhawk helicopter crew chief and repairman had a high probability of hazardous noise exposure.

Service connection may not be established for disability due to hearing impairment unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran received numerous audiological exams, including one connected with his entrance exam in August 1999 and one that was conducted a month before the Veteran officially separated from active duty.

The Veteran's initial claim for bilateral hearing loss was filed in July 2009. Subsequently, the Veteran received an audiological examination in August 2009, one month before his separation from service. Puretone threshold testing was done, and a speech recognition score was issued using the Maryland CNC word list. The puretone threshold test on the left ear showed 10 dB loss at 500 Hz, 10 dB loss at 1000 Hz, 10 dB loss at 2000 Hz, 15 dB loss at 3000 Hz, and 15 dB loss at 4000 Hz for an average decibel loss of 12.5. The left ear was also shown to have a 100 percent speech discrimination score. These findings do not meet the threshold to establish service connection for hearing impairment. The right ear Puretone threshold test presented 15 dB loss at 500 Hz, 15 dB loss at 1000 Hz, 10 dB loss at 2000 Hz, 10 dB loss at 3000 Hz, and 15 dB loss at 4000 Hz for an average of 12.5. The speech discrimination score on the right ear was also 100 percent. These numbers do not meet the threshold required for service-connected hearing impairment. The examiner found the diagnosis to be no measure hearing loss according to VA standards. For VA rating purposes, the Veteran was found to present hearing within normal limits.

Once the Veteran's claim for hearing loss was reopened, the Board remanded the claim for another VA examination. The Veteran was afforded another audio examination in March 2021. On this exam, puretone threshold testing was performed again. The left ear showed dB loss of 15 at 1000 Hz, 10 dB loss at 2000 Hz, 25 at 3000 Hz, and 10 at 4000 Hz for an average decibel loss of 15. The speech discrimination score was 96 percent in the left ear. The right ear Puretone threshold testing showed a dB loss of 10 at 1000 Hz, 10 at 2000 Hz, 20 at 3000 Hz, and 10 at 4000 Hz for an average decibel loss of 30. The speech discrimination score of the right ear was 94 percent. The examiner found the Veteran to have sensorineural hearing loss on the right ear in the frequency range of 6000 Hz and above. The findings of sensorineural hearing loss in the right ear at frequencies of 6000 and above shows impaired hearing but it does not meet the criteria to be considered a disability for VA purposes. The examiner found the left ear to have normal hearing. The examiner opined that the Veteran's hearing loss is less likely than not caused by or a result of an event in military service. The examiner stated that on the March 2021 exam and the August 2009 exam, hearing was found to be within normal limits.

The Veteran claims his hearing loss began around 2005. He testified that his hearing loss is due to his work in and around helicopters as a Blackhawk crew chief at his May 2019 Board hearing. The Board has considered that the Veteran is competent to report noise exposure during his active service. However, he is not competent to diagnose himself with in-service hearing loss, and he is not competent to link any current hearing loss after his military service to in-service disease or injury, including noise exposure. This issue is medically complex and requires specialized knowledge of the anatomy of the ear, its mechanisms for hearing, and disease processes (including the effect of acoustic injury). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The etiology of delayed onset hearing loss is simply not susceptible to lay observation. Notably, the medical records are silent for complaints of hearing loss between separation from service in 2009 until the most recent VA examination in March 2021.

The Board assigns great probative value to the service treatment records (STRs), which demonstrate normal clinical evaluation, and the negative March 2021 VA medical opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). The VA medical opinion was prepared by an audiologist after examination of the Veteran and review of relevant medical records. Further, it is supported by a complete rationale. See Prejean v. West, 13 Vet. App. 444, 448 49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not provided a favorable medical opinion to the contrary. 

The Board thus concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As discussed above, while the Veteran believes he has a current diagnosis of hearing loss, he is not competent to provide a diagnosis in this case.  Consequently, the Board gives more probative weight to the competent medical evidence.

After a review of the above, the Board finds that service connection for bilateral hearing loss is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53.

2. Entitlement to service connection for hemorrhoids

The Veteran also contends that he is due entitlement to service connection for hemorrhoids he began to suffer from in-service. Specifically, the Veteran attributes his hemorrhoids to the thousands of hours he spent sitting in helicopters while in-service.

As noted above, service connection requires three elements: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus 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).

The Veteran initially filed his claim for service connection for hemorrhoids in July 2009 and subsequently received an examination in August 2009.

On the August 2009 examination, the Veteran reported that he had been aware of his hemorrhoids since 2001, noting that sometimes swelling would occur and normally they were painful. The Veteran stated that he treated the hemorrhoids as home with Preparation H, which did not lead to any side effects or complications of the condition. The examiner reported that the perianal tissue was normal in sensation, with no evidence of hemorrhoid, fissure, vesicles, ulcer, or fistula formation. The examiner also noted that there was no tenderness on the digital exam and the prostate was normal, smooth, and nontender. Although the Veteran's STRs noted complaints and treatment for hemorrhoids, the examiner ultimately found that the hemorrhoids had resolved and there was therefore no diagnosis.

In November 2020, the Board decision reopened the claim for hemorrhoids, due to new and material evidence that was submitted into the file in the form of VA medical records from November 2018, in which the Veteran endorsed the presence of hemorrhoids. Additionally, testimony in the May 2019 Board hearing also indicated the presence of hemorrhoids.

The Veteran underwent a new VA examination for his hemorrhoid disability in October 2020. The examiner stated that the Veteran had been initially diagnosed with hemorrhoids while in service in 2004. The November 2018 VA medical records also established that the Veteran has a current disability of hemorrhoids. Therefore, the first two elements of service connection are established.

Here, the October 2020 VA examiner reported that the Veteran began to have inflammation of the rectal tissue while on active duty. He went to sick call and was given a cream to apply that momentarily resolved his symptoms. The examiner also noted that the Veteran's symptoms have remained largely the same over the past year and that he had explained perianal inflammation eight times in the past year before the October 2020 examination. However, the examiner ultimately concluded that the claimed condition of hemorrhoids was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner noted that there was no continuity of care or treatment of the condition noted on record since 2005. The examiner continued that while the hemorrhoid disability "could have been caused by sitting for hours in helicopters during service," there is no nexus to show that the current hemorrhoid disability is related to the inflammation the Veteran was experiencing in service. Additionally, there is no evidence of continuity of care or chronicity of complaints and treatment between the Veteran's release of active duty and the claim for service connection.

The Board concludes that the Veteran has a current disability that began during or is otherwise attributable to his time on active service.  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).

Service treatment records show the Veteran was treated for symptoms of hemorrhoids in 2004, during active service. Post-service treatment records show that he continued to complain of and seek treatment for the same symptoms, on an intermittent basis, from that time until the present. The Veteran is competent to report that he experienced symptoms of hemorrhoids both during service and currently. His statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record.  Thus, the question becomes whether the current disability is related to service.  

The evidence against the claim includes the October 2020 VA examiner's opinion, which states that the Veteran's hemorrhoids are less likely than not due to service. However, the Board finds this opinion equivocal as to the relevant question of nexus, as the examiner also concluded that the Veteran's hemorrhoids "could have been caused by sitting for hours in helicopters during service." This statement, despite being offered in the context of a negative opinion, suggests to the Board that there is a distinct likelihood that the Veteran's hemorrhoids are in fact attributable to an in-service event.  The Board further finds that the examiner's explanation as to the ultimate conclusion that the Veteran's hemorrhoids are less likely than not related to servicethe lack of chronicity of care between service and the presentis an insufficient rationale.

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hemorrhoids arose in or are otherwise related to service.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hemorrhoids is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted.

3. Entitlement to service connection for respiratory disability, to include asthma

The Veteran also contends he is due entitlement to service connection for his respiratory condition, to include asthma. The Veteran's claim of service connection for his respiratory condition was reopened by the Board in November 2020, due to new and material evidence. 38 U.S.C. § 5108; see Evans v. Brown, 9 Vet. App. 273, 285; see also Shade v. Shinseki 24 Vet. App. 110, 117 (2010). The new and material evidence came in the May 2019 Board hearing testimony, in which the Veteran testified that his current symptoms are similar to those that he experienced in service, mainly lightheadedness and having shortness of breath after exertion.

As noted above, the Veteran may establish entitlement to service connection under 38 C.F.R. § 3.317 as a Persian Gulf Veteran with objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1).

The Veteran may also be able to establish entitlement to service connection under the Shedden elements, showing that he has a current disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or nexus 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).

Addressing these theories in turn, the Board finds that service connection is not warranted for a respiratory disability, to include asthma.

The Board finds, first, that the evidence of record shows that the Veteran has not had a diagnosis of, or complaints associated with, a respiratory disability, to include asthma, during the pendency of this claim.

The Veteran's STRs note his respiratory complaints, including shortness of breath on exertion, as well as an inability to complete a two-mile run. The Veteran was ultimately prescribed an inhaler and was diagnosed with exercise induced asthma in November 2006. His STRs show, however, that in March 2004 it was reported that he did not have asthma, and he was assigned a rule-out diagnosis of exercise induced asthma in November 2004. In 2006 the Veteran did have a diagnosis of asthma and was reported as taking albuterol prior to any exercise. In October 2008 he was again diagnosed with exercise-induced asthma. In 2009 on the separation exam the Veteran reported having asthma and breathing problems as well as shortness of breath. He also states he was prescribed an inhaler. No diagnosis of asthma was documented at that time, however.

On the August 2009 VA examination, the Veteran reported that he has a shortness of breath while running and that exerting himself generally causes shortness of breath. It is noted that the STRs first show evidence of the Veteran's condition around 2004. The examiner notes that the Veteran reports no history of cough, shortness of breath or chest pain. It was also reported that the Veteran's breathing pattern was normal with no respiratory distress and that there is good air entry in both lungs. A pulmonary function test (PFT) was also conducted and showed normal spirometry. The examiner concluded that there was no current pathology identified on physical exam or by pulmonary function test to render a diagnosis.

In December 2009 the Veteran was seen at the Fayetteville VA Medical Center (VAMC), where he reported that he had received a PFT in the past and was told that he did not have asthma. in April 2014 and August 2014 at Colorado Springs and St. Augustine VAMCs, he reported there was no shortness of breath, no wheezing, no cough, no dyspnea on exertion and no known history of asthma. The record is then silent for symptoms of asthma or a respiratory illness until the Veteran's Board hearing in May 2019, when he testifies that he still experiences lightheadedness and shortness of breath.

The Veteran underwent another VA examination in October 2020, and the examiner stated that no diagnosis for a respiratory condition was warranted. The examiner noted that the Veteran presented no chronic condition and had no chronicity of care for any respiratory problems since 2006. The examiner also reported that all clinical evaluations and tests showed the Veteran's pulmonary functions to be within normal limits. The examiner only noted the Veteran has having "other pulmonary conditions" due to his subjective statements about experiencing shortness of breath on exertion.

The Board finds the opinion of the October 2020 examiner to be highly probative. The examiner conducted a thorough review of the record and provided a well-reasoned rationale which took into account the medical findings both during and after the Veteran's time in service.

Significantly, respiratory symptoms are not a disease or injury that may be considered a disability for VA compensation purposes; rather, they are merely symptoms. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability; in the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of competent evidence of a current respiratory disability during the course of the appeal, service connection cannot be granted for this disability, and any further consideration of the Veteran's service connection claim on a direct basis is not necessary.

An exception applies if respiratory symptoms are due to a qualifying chronic disability, to include an undiagnosed illness or a medically unexplained multi-symptom illness after Persian Gulf service. 38 U.S.C. § 1117(g)(1); 38 C.F.R. § 3.317(b). The regulations clarify that there must be objective indications of a qualifying chronic disability, which include signs or symptoms in the medical sense, of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(1) and (3).

Here, while the Veteran's reports of respiratory symptoms are credible, all clinical evaluations conducted throughout the appeal period have shown no actual respiratory problems. In other words, there are no objective indications of a qualifying chronic disability. Thus, the Board has no basis on which to conclude that service connection under 38 C.F.R. § 3.317 is warranted.

While the Veteran believes that he has a respiratory disability related to service, his lay opinion on this matter is not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Rendering a diagnosis of a chronic respiratory disability, and determining the etiology of such a disorder, is a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

No factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose such a condition, or to offer an opinion on the nexus between such disorder and his period of active service. For these reasons, his lay opinions are not competent evidence. Further, he has not otherwise provided medical evidence to establish that he currently has a chronic respiratory disability. In this regard, as noted above, the Veteran was provided a VA examination in October 2020. An examination at that time reflected normal findings, providing evidence against this claim of high probative weight. Thus, service connection is not warranted.

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a respiratory disability, to include asthma, and the benefit-of-the-doubt rule set forth in 38 U.S.C. § 5107(b) is not for application. Service connection for a respiratory disability, to include asthma, is denied.

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E.L. Aumiller, 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.