Citation Nr: 18160639
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-42 672
DATE:	December 27, 2018
ORDER
Service connection for left ear hearing loss is granted.
Service connection for a respiratory disability is denied.
REMANDED
Service connection for right ear hearing loss is remanded.
FINDINGS OF FACT
1. The Veteran's preexisting left ear hearing loss was aggravated by service.
2.  The Veteran’s COPD is not attributable to service, and the probative evidence does not establish an asbestos-related illness.
CONCLUSIONS OF LAW
1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 1153, 5103A, 5107; 38 C.F.R. §3.102, 3.303, 3.306, 3.385.
2.  The criteria for service connection for a respiratory disability have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1975 to May 1980 in the United States Navy.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In October 2015, the Veteran participated in an informal conference with a Decision Review Officer (DRO) at the RO; a summary of that conference is of record.  
In March 2018, the Veteran withdrew his request for a Board hearing. 
Service Connection
 Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Left Ear Hearing Loss
Veterans are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service.  38 U.S.C. §§ 1111, 1137.  Only such conditions as are recorded in entrance examination reports are to be considered as "noted."  38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). 
If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but he/she may bring a claim for service-connected aggravation of that disorder.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.  Under 38 U.S.C. § 1153, the burden falls on the veteran to establish aggravation of the preexisting disorder.  Id.; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). 
Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. §3.306 (b).
Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
On the Veteran’s December 1975 entrance examination, his auditory threshold was 45 decibels at 4,000 Hertz in the left ear.  The examining physician noted defective hearing in the summary section of the report.  Thus, it is clear that the Veteran entered service with preexisting left ear hearing loss.  At issue is whether the hearing loss was aggravated by military service.
During service, he was exposed to hazardous noise in the performance of his duties as a fireman, and also while working in the boiler room and in proximity to gun blasts on the deck of his ship.  See August 2013 Rating Decision (granting service connection for tinnitus).  Service audiometric records depict the following puretone thresholds, in decibels, for the left ear: 
 						
	HERTZ
 	500	1000	2000	3000	4000	6000
12/75 	35	20	10	x	45	x
9/77	20	20	15	10	40	55
3/78	20	20	15	20	40	70
6/78	25	25	20	20	50	65
7/79	20	20	15	20	50	60
4/80	30	25	15	20	50	65

Following service, the following puretone thresholds, in decibels, were obtained: 
	HERTZ
 	500	1000	2000	3000	4000	6000
10/99 
20	15	15	35	55	70
7/13	35	25	25	50	60	70

On VA examination in July 2013, the examiner opined that the Veteran’s hearing loss preexisted service but was not aggravated beyond its normal progression by military service.  She compared the December 1975 (entrance) and April 1980 (separation) audiograms, and stated that the hearing thresholds at 4000 Hertz were not significantly different.  Aggravation could not be determined at 6000 Hertz since this threshold was not measured at entry.  The examiner stated there was no indication of further aggravation in the military medical records.
Initially, the Board finds that there was an increase in the severity of the Veteran’s left ear hearing loss during service.  Comparing his earliest two audiograms, those dated from December 1975 and September 1977, against the subsequent in-service audiograms shows a worsening of hearing acuity in every parameter other than 500 Hertz.  Additionally, the post-service medical records also depict a further worsening of hearing acuity in the left ear, particularly at 2000 Hertz and above.  As such, aggravation of the preexisting left ear hearing loss is presumed.
Additionally, the Board finds that there is not clear and unmistakable evidence to show that the increase in severity during service was due to the natural progress of the disease.  The July 2013 VA examiner only considered the entrance and separation audiograms; no mention was made of the intervening audiograms which depict an increase in disability.  See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate).  In this vein, without considering the intervening audiograms, the examiner further stated she could not determine whether aggravation had occurred at 6000 Hertz because hearing at this threshold was not tested on entry.  Her overall finding that there was “no indication” of aggravation during military service was thus founded on inaccurate facts and does not constitute clear and unmistakable evidence against the claim.
For these reasons, the presumption of aggravation is not overcome, and the criteria for service connection for left ear hearing loss, as aggravated in service, have been met.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.


	Respiratory Disability

The Veteran has current chronic obstructive pulmonary disease (COPD), documented on VA examination in March 2018.  
On entry into service in December 1975, no abnormalities of the lungs or chest were found, and the Veteran raised no pertinent complaints on the accompanying Report of Medical History.  The service treatment records (STRs) do not document COPD or any respiratory disease.  On his April 1980 separation examination, no abnormalities of the lungs or chest were found.  A chest x-ray and tuberculosis (PPD) test were conducted, and no abnormalities were documented.
However, VA has already established the Veteran’s in-service exposure to asbestos, through the performance of his duties as a fireman while working on boilers and associated equipment in the fireroom.
In a February 2011 VA treatment record, a computerized tomography (CT) scan revealed pleural plaques consistent with prior asbestos exposure.  The scan also revealed a pulmonary nodule and mild emphysema.
In a February 2012 VA treatment record, a follow-up CT scan revealed no significant changes.  A few small pleural plaques were demonstrated bilaterally, which may have represented changes secondary to asbestosis.  COPD changes were also noted.
A June 2015 VA CT scan documented stable pleural plaques and no evidence of malignancy.
In a November 2016 private treatment record, a chest x-ray revealed fibrosis.  The examiner noted it was directly related to asbestos exposure, given the Veteran’s history and the period of latency.
In a March 2017 VA pulmonary consultation, the Veteran recounted his in-service asbestos exposure.  A CT scan was performed.  The examiner determined the Veteran had abnormal pleural plaques, but he did not have asbestosis because there was no evidence of parenchymal lung disease.  He also had likely COPD, but the etiology of this disability was not addressed.
On VA examination in March 2018, the examiner opined that while the Veteran had pleural plaques, he did not have asbestosis because there was no parenchymal involvement.  The examiner opined that the COPD was due to an extensive smoking history and was not related to service.
In August 2018, an advisory medical opinion from the Veterans Health Administration (VHA) was obtained.  The examiner reviewed the record and summarized the pertinent diagnostic findings.  He explained that pleural plaques are deposits of hyalinized collagen fibers in the parietal pleura.  They are indicative of asbestos exposure and typically become visible twenty or more years after the inhalation of asbestos fibers.  Asbestosis specifically refers to the slowly progressive, diffuse pulmonary fibrosis caused by inhalation of asbestos fibers.  
He opined that there was not a 50 percent or better probability that the Veteran’s COPD was related to his military service.  He additionally opined that there was not a 50 percent or better probability that the Veteran has asbestosis or any other asbestos-related disease.  Rather, COPD was caused by the Veteran’s 40-year smoking history.  The pleural plaques are attributable to asbestos exposure, however, as the Veteran does not have fibrotic lung disease, he does not have asbestosis.  
Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim.  The disability was not shown until many years after service discharge.  Additionally, the probative evidence does not show that the Veteran’s COPD is related to his active military service, including his exposure to asbestos.  Of particular significance, the August 2018 VHA examiner addressed the contentions of direct service connection, but opined that the Veteran does not have any asbestos-related disease.  Rather, his COPD was caused by a 40-year smoking history.  He based his conclusion on an examination of the claims file, including post-service treatment records, and diagnostic reports.  He reviewed the reported history and symptoms in rendering the opinion, and provided a rationale for the conclusion reached.
The Veteran’s smoking history is clearly documented in his treatment records.  VA records in 1999 note a history of smoking 2 packs per day.  A treatment record in 2008 noted that he smoked one pack a day for the past 37 years.  Records indicate that he stopped smoking in 2015.  
Further, different physicians in March 2017 and March 2018 also explained that while the Veteran clearly has pleural plaques due to asbestos exposure, he does not have asbestosis because he does not have fibrotic lung disease.  Consistently, the February 2011 VA provider attributed abnormalities to asbestos, but did not diagnose asbestosis.  The February 2012 provider stated the plaques “may” represent asbestosis, but such a speculative finding is not persuasive.  See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship).  To the extent the November 2016 private medical report diagnosed fibrosis due to asbestos exposure, when weighed against the remainder of the medical record, particularly the findings of the March 2017, March 2018, and August 2018 physicians, the preponderance of the evidence is against the claim.
The only other evidence to the contrary is the lay evidence.  The Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of a medically complex disease such as COPD.  See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011).
In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application.
REASONS FOR REMAND
The claim for service connection for right ear hearing loss must be remanded for a further medical opinion.  The July 2013 VA examiner premised her conclusion on a finding that bilateral hearing loss preexisted service, and provided an opinion on the matter of aggravation.  However, right ear hearing loss was not noted on entry into service, and there is no evidence to otherwise indicate preexisting right ear hearing loss.  Rather, the Veteran was sound on entry as to his right ear.  Additionally, the examiner only considered the audiograms conducted on entry and separation from service, despite those in between indicating threshold shifts, including from September 1977, March 1978, June 1978, and July 1979.  An opinion on direct service connection must be obtained, and the examiner must consider his established in-service noise exposure as well as all of the pertinent in-service evidence.
While on remand, an attempt should be made to clarify a private audiogram, dated from October 1999 and received by VA in March 2015.  In Savage v. Shinseki, 24 Vet. App. 259 (2011) the Court held that when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed.  Here, it should be clarified whether any speech discrimination testing was conducted, if so, and the results.
The matter is REMANDED for the following action:
1. After obtaining any appropriate authorization from the Veteran, contact the private audiologist (Medical Plaza Mobile Surveillance) who conducted the October 1999 audiogram on behalf of the Veteran’s employer, South Coast Terminal, and request clarification of the report. 
Specifically, the audiologist should be asked to indicate whether controlled speech discrimination testing was conducted, and if so, the type of test used (Maryland CNC, for example) and the results.
2. Schedule the Veteran for an examination to address the nature and etiology of his right ear hearing loss. 
The examiner must consider the Veteran’s right ear hearing to be without disability upon entry onto active duty, notwithstanding the July 2013 VA examiner’s findings in this regard.  
The examiner must opine on whether it is at least as likely as not that current right ear hearing loss is related to an in-service injury, event, or disease, to include his established in-service hazardous noise exposure.  
(Continued on the next page)
 
In rendering his/her opinion, the examiner must consider the threshold shifts documented on audiograms dated from December 1975, September 1977, March 1978, June 1978, July 1979, and April 1980.
 
M. Tenner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Smith, Counsel 

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