Citation Nr: 23052257 Decision Date: 09/21/23 Archive Date: 09/21/23 DOCKET NO. 15-41 058A DATE: September 21, 2023 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for residuals of a thyroidectomy, including as secondary to asbestos exposure is denied. FINDINGS OF FACT 1. The evidence does not support that the Veteran's hearing loss reaches the level of a disability for VA purposes. 2. The evidence does not support that the Veteran's residuals of a thyroidectomy are etiologically linked to his active-duty service to include asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for residuals of a thyroidectomy, including as secondary to asbestos exposure have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1974 to August 1977. The appeal was previously before the Board in September 2019. The Board remanded the appeal to obtain an adequate medical opinion as to the nature and etiology of the Veteran's residuals of a thyroidectomy and to afford the Veteran a VA examination to assess the current severity of his bilateral hearing loss. The Veteran underwent a new VA examination for hearing loss in December 2022. Medical opinions as to the etiology of the Veteran's thyroid disorder were added to the file in January 2023, June 2023, and July 2023. The Board finds the July 2023 medical opinion adequate. Thus, the Board determines that there has been substantial compliance with the September 2019 remand directive, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran 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 be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 . Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the evidence of record, the Veteran received a VA audiological examination in March 2014. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10db 10db 5db 10db 20db LEFT 10db 10db 5db 10db 20db Speech recognition on the Maryland CNC Test was 100 percent bilaterally. These results do not indicate hearing loss of such severity that it meets the level required to be a disability for VA purposes. 38 C.F.R. § 3.385 (2019). The Veteran underwent another VA examination in April 2019. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15db 15db 20db 25db 40db RIGHT 10db 15db 5db 10db 25db Speech recognition on the Maryland CNC Test was 100 percent bilaterally. While these results indicate that the Veteran may have hearing loss, it is not of such severity that it meets the level required to be a disability for VA purposes. 38 C.F.R. § 3.385 (2019). The Veteran was afforded a final VA examination in December 2022. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20db 30db 20db 20db 30db RIGHT 20db 30db 20db 20db 30db Speech recognition on the Maryland CNC Test was 94 percent bilaterally. While these results indicate that the Veteran may have hearing loss, it is not of such severity that it meets the level required to be a disability for VA purposes. 38 C.F.R. § 3.385 (2019). With respect to the first element necessary to establish service connection, a current disability, the record on appeal contains no reliable clinical evidence of a bilateral hearing loss disability which meets the criteria set forth in 38 C.F.R. § 3.385. As the audiological results do not support a current disability for VA purposes, the Board finds that service connection for hearing loss is not warranted. The evidence is persuasively against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 2. Entitlement to service connection for residuals of a thyroidectomy The Veteran contends that he has post-thyroidectomy hypothyroidism caused by exposure to toxins in service to include asbestos and lead paint. There is no dispute that the Veteran is diagnosed with hypothyroidism. Thus, the first element of service connection, a current disability, is established. Turning to an in-service incurrence, the Board noted the Veteran's military occupational specialty was fireman and that he worked in a boiler room. VA recognizes asbestos exposure for this type of work, the Board conceded the Veteran's in-service asbestos and lead paint exposure. To this point, the Board also notes the lay statements of record from the Veteran indicating that he was exposed to asbestos and lead paint in service. As his exposure has been considered, those lay statements do not need to be addressed. Thus, the remaining issue is a nexus. The Veteran was afforded a VA examination in September 2013 in connection with his claim for service connection for residuals of a thyroidectomy. The VA examiner found that the Veteran's claimed disability was less likely than not incurred in or caused by the claimed in-service asbestos exposure because imaging and pulmonary function testing did not show evidence of asbestosis. The Board previously found this opinion inadequate because the examiner failed to address whether there is a causal relationship between the events and circumstances of the Veteran's service and his claimed disability. In December 2014, the Veteran underwent heavy metal testing due to his reports of lead exposure. The tests were normal. Pursuant to the September 2019 remand, a new VA opinion was associated with the record in December 2022. The examiner again opined the Veteran's hypothyroidism was less likely than not incurred in or caused by any event, illness, or injury during service because medical records did not indicate the Veteran had been treated for any event, illness, or injury during service to include exposure to asbestos or other environmental toxins. The Board finds this opinion is inadequate for the same reasons as the September 2013 opinion. Notably, the examiner was specifically instructed that exposure to asbestos was conceded and the examiner was requested to opine as to whether the Veteran's current disability was due to that exposure or other environmental toxins consistent with the circumstances of the Veteran's service as a fireman aboard the ship. In January 2023, the VA examiner provided an addendum opinion. The examiner explained that based on published medical literature, hypothyroidism was not a health problem associated with exposure to asbestos. Therefore, the examiners opinion was not changed. The Board finds this opinion somewhat probative as the examiner provided supporting literature which did not reveal hypothyroidism as a condition consistent with exposure to asbestos. In May 2023, a VA examiner again opined the Veteran's hypothyroidism was less likely than not incurred in or caused by asbestos exposure during service because there was "no evidence in the records that the Veteran had an exposure to asbestos." Again, the Board finds this rationale inadequate. In July 2023, a VA examiner provided a negative nexus opinion. The examiner noted that the Veteran's hypothyroidism was due to treatment for hyperthyroidism which was diagnosed in approximately 1980. The examiner explained that the medical literature does not support that hyperthyroidism would manifest several years after the removal from an environmental exposure. The examiner noted that the medical literature also does not support that hyperthyroidism is caused by asbestos or ship contaminates/exposures. The examiner found no medical or scientific evidence available that provides any indication of a relationship between the Veteran's thyroid disorders and his claimed exposures. Additionally, the examiner noted the Veteran had risk factors outside of military service, including his mother's history of thyroid conditions, which far outweighed his claimed exposures as a likely cause of his disability. Ultimately, the examiner found the claimed residuals of thyroidectomy to be less likely than not caused by the indicated toxic exposure risk activities, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran. The Board finds this opinion highly probative as it reveals a thorough review of the Veteran's file, addresses relevant lay evidence and medical literature, and is supported by sufficient rationale. Moreover, there is no competent evidence to contradict the examiner's findings. To the extent the Veteran argues that his thyroid condition is due to exposures to asbestos and lead paint during service, the Veteran is not competent to determine the etiology of his thyroid condition. These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses and cannot be determined by mere observation. Accordingly, his statements of nexus are of no probative value. Given that the most probative evidence of record shows the Veteran's residuals of a thyroidectomy are unrelated to service, the evidence is persuasively against the claim, and the benefit-of-the-doubt doctrine is inapplicable. Accordingly, the claim for service connection for residuals of a thyroidectomy, including as secondary to asbestos exposure is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sherman, Cara 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.