Citation Nr: 0809798 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-03 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart disorder, diagnosed as idiopathic dilated cardiomyopathy. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from October 1965 until October 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In March 2004, the veteran requested review by a Decision Review Officer (DRO) of his claim on appeal. In a December 2004 statement of the case a DRO addressed his claim de novo as part of the appeal process. See 38 CFR § 3.2600 (2007). The Board accordingly considers the claim to have been properly adjudicated at the RO level, including for purposes of appellate review. The Board notes that in January 2005 the veteran submitted additional private treatment records dated August 2004 without a waiver of RO consideration. In this regard, the Court has held that when the Board considers additional evidence without remanding the case to the RO for initial consideration, the appellant is denied a "review on appeal." See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). However, in the present case, the August 2004 private treatment records submitted by the veteran are duplicative of the evidence of record at the time the RO considered the veteran's claims. Specifically, they detail his current diagnosis of hearing loss and describe in service acoustic trauma. For this reason, the Board may proceed with appellate consideration at the present time. FINDINGS OF FACT 1. A chronic heart disorder was not shown in service or diagnosed until 2002. 2. Bilateral hearing loss was not shown in service or noted until 1983. 3. A chronic heart disorder and bilateral hearing loss are unrelated to active duty. CONCLUSIONS OF LAW 1. A heart condition, diagnosed as idiopathic dilated cardiomyopathy, was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.03, 3.307, 3.309 (2007). 2. Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS According to the law and regulations, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The first question for consideration when evaluating a service connection claim is whether competent evidence demonstrates a current disability. The Board notes that the veteran has a current diagnosis of idiopathic dilated cardiomyopathy. Specifically, a VA examiner in November 2004 rendered such diagnosis and stated that in 2002 the veteran had four chamber dilation and diffuse hypokinetic left ventricle and ejection fraction of 20%. Additionally, his private physician rendered an assessment of idiopathic dilated cardiomyopathy in 2002. Therefore, the evidence of record reflects a current diagnosis of idiopathic dilated cardiomyopathy, which manifested itself as early as 2002. In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). VA examination and private treatment records also indicate that the veteran has bilateral hearing loss. In particular, a VA audiological examination performed in October 2004 confirmed that he has hearing loss as defined by 38 C.F.R. § 3.385. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 70 80 75 LEFT 45 55 80 90 80 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 64 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. Additionally, private treatment records reveal that the veteran had hearing loss as defined by 38 C.F.R. § 3.385 as early as 1983. He also submitted a private audiological evaluation completed in August 2004; however, this audiological report contains uninterrupted results of his pure tone threshold evaluation. The Board notes that it is precluded from interpreting pure tone threshold results in order to determine the severity of the veteran's current hearing loss disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (holding that neither the Board nor the RO may interpret graphical representations of audiometric data). Nevertheless, the objective evidence reflects a current diagnosis of bilateral hearing loss. Regarding the second element of a service connection claim, that of in-service incurrence, the veteran asserts that his currently-diagnosed idiopathic dilated cardiomyopathy is related to the pericarditis he experienced during service. Indeed, service medical records reflect that he was treated for acute benign infectious pericarditis in September 1966. A chest X-ray taken at that time revealed a large cardiac silhouette indicative of pericardial effusion. However, this condition appears to have been treated on that one occasion without residuals. Significantly, his separation examination dated September 1967 indicates that he had a normal heart and vascular system. Furthermore, he denied having any pain or pressure in his chest or palpating or pounding heart in his reports of medical history dated in July 1965 and September 1967. In addition, private treatment records dated in 1998 reflect that at that time his heart was not enlarged and had regular cardiac rhythm with no murmurs. This evidence weighs against an in-service incurrence. Moreover, a VA medical examiner in November 2004 opined that the veteran's cardiomyopathy is idiopathic and it is unlikely to be secondary to his acute pericarditis he experienced in active service. Additionally, the file does not contain any evidence that is inconsistent with this opinion. The Board acknowledges the veteran's belief that the pericarditis he experienced during active service is related to his current diagnosis of idiopathic dilated cardiomyopathy. He is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). With respect to his hearing loss claim, the veteran asserts that he was exposed to noise during service. Specifically, he claims that he was exposed to acoustic trauma from artillery while stationed in Vietnam. His DD-214 reflects his military occupation specialty as field artillery crewman. Notably, his separation examination reports normal hearing and ears. Moreover, in his report of medical history completed at the time of separation, he did not indicate that he experienced any ear trouble. Therefore, there is also no evidence of in-service treatment for hearing loss. Furthermore, by the veteran's own statements, contained in the October 2004 VA examination, he did not notice progressive hearing loss until 2 to 3 years after separation from military service. His normal audiological examination upon separation and statements concerning exposure the onset of hearing loss do not support his assertions that he has experienced this disorder since active duty. Moreover, the post-service medical evidence does not indicate any findings of treatment for a heart condition or hearing loss for many years after service. Specifically, idiopathic dilated cardiomyopathy was not diagnosed until 2002 (nearly 35 years after service separation) and evidence of hearing loss is not found until 1983 (nearly 16 years after service separation). In this case, the Board emphasizes the multi- year gap between discharge from military service (1967) and initial reported symptoms related to a heart condition and bilateral hearing loss. In addition to the documented post service treatment records, the evidence includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating his claim, the Board must evaluate the veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board has considered the all the statements asserting continuity of symptomatology of the veteran's currently- diagnosed idiopathic dilated cardiomyopathy and bilateral hearing loss and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Regarding his statements asserting continuity of symptoms of a heart condition, the Board places greater probative value on the absence of complaints or treatment for a heart condition in the intervening years because this is not a symptom that the veteran is competent to report he has experienced since it is not a symptom that is observable by lay observation. See 38 C.F.R. § 3.159(a) (2007). Therefore, the Board finds that the veteran is not competent to assess continuity of symptomatology as to his claim for service connection of a heart condition. With respect to his assertions of continuing symptoms of bilateral hearing loss since active duty service, the Board acknowledges that the veteran is competent to provide evidence of his own experiences of hearing loss. However, the fact that he was not diagnosed with hearing loss for 16 years after separation and did not complain of hearing loss until much later weighs heavily against the claim he now makes that he has had problems ever since service. Indeed, private records showing hearing loss in 1983, 1996, and 1998 contain no references to on-going symptomatology since service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, continuity of symptomatology has not been shown. Next, service connection may be granted when a medical nexus is established between the claimed disorder and active duty service. Regarding his claim for a heart condition, no medical examiner or treating physician has established or suggested a direct medical nexus between the veteran's diagnosed idiopathic dilated cardiomyopathy and active duty. Rather, as previously stated, a VA examiner in November 2004 opined that his current diagnosis of idiopathic dilated cardiomyopathy is not related to the acute pericarditis he was treated for in service. Moreover, there is no evidence of record inconsistent with that finding. With respect to evidence establishing a medical nexus between his current bilateral hearing loss and active duty service, the Board acknowledges an opinion from Dr. C. stating that he believes that veteran's current significant bilateral hearing loss is due to his exposure to artillery noise while in service. The Board is inclined to give this medical opinion less weight because there is no evidence that the private physician reviewed the veteran's claims file. In Elkins v. Brown, 5 Vet. App. 474, 478 (1993), the Court rejected a medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis. See also Swann v. Brown, 5 Vet. App. 177, 180 (1993) (without a review of the claims file, an opinion as to etiology of an underlying disorder can be no better than the facts alleged by the veteran). Moreover, the physician does not appear to be a specialist in audiology or any related field. Rather, the letter head lists him as Internal Medicine. In contrast, the veteran underwent a VA examination in October 2004 by an audiologist. After a through review service medical records and physical examination, the examiner opined that it would seem less than likely that the veteran's current hearing loss began as a result of exposure to military noise. The VA examiner concluded that although the veteran could have sustained some level of hearing noise-induced hearing loss in the military, the examiner determined that his hearing loss is not a result of exposure to military noise. This opinion was based on the lack of hearing loss onset during military service, normal hearing at the time of discharge, and the veteran's report of onset after 2 to 3 years after separation from service. In assigning higher probative value to this later report, the Board notes that the VA examiner had service medical records, obtained a reported history from the veteran, and conducted a complete audiological examination. There is no indication that the VA examiner was not fully aware of the veteran's past medical history or that he misstated any relevant fact. Moreover, Dr. C.'s opinion did not account for the long absence of any documented hearing loss symptomatology following the veteran's separation from military service. The Board places greater probative value on the October 2004 VA examiner's opinion, as it was based on a review of the service medical records and supported by sound rationale. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). Because the later opinion was offered following a review of the service medical records and after objective examination of the veteran, it is found to be highly probative. The Board has also considered the veteran's statements asserting a relationship between his currently-diagnosed idiopathic dilated cardiomyopathy and bilateral hearing loss and active duty service. As stated above, while he is competent to report symptoms, he is not competent to offer opinions on medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. at 470; Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Next, the Board has considered whether presumptive service connection is warranted under 38 C.F.R. § 3.309(a) for the veteran's bilateral hearing loss. To be entitled to the presumption, an organic disease of the nervous system must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). As the evidence of record fails to establish any clinical manifestations of bilateral hearing loss within the applicable time period due to organic disease of the nervous system, the criteria for presumptive service connection have not been satisfied. Additionally, the Board has considered whether presumptive service connection is warranted under 38 C.F.R. § 3.309(e) for the veteran's current idiopathic dilated cardiomyopathy. In this regard, he contends that he developed a heart condition as a result of herbicide exposure. Essentially, he asserts that his exposure to Agent Orange caused his currently-diagnosed idiopathic dilated cardiomyopathy. In the present case, there is no dispute that the veteran had active service in the Republic of Vietnam during the applicable time period. 38 C.F.R. § 3.307(a)(6)(iii) (2007). As such, exposure to an herbicide agent is presumed. Id. Moreover, the claims file contains no evidence rebutting such presumption. Nevertheless, a grant of presumptive service connection for herbicide exposure is not warranted because idiopathic dilated cardiomyopathy is not among the diseases listed under 38 C.F.R. § 3.309(e). Furthermore, there is no competent evidence to otherwise show that the currently-diagnosed heart condition is otherwise directly related to in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the criteria for presumptive service connection have not been satisfied. In sum, the evidence of record fails to establish that the veteran's currently-diagnosed idiopathic dilated cardiomyopathy or bilateral hearing loss were incurred in service. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in July 2003 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records. He submitted private treatment records and statements in support of his case. In addition, he was afforded VA medical examinations in October and November 2004. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a heart disorder, diagnosed as idiopathic dilated cardiomyopathy, is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs