Citation Nr: 1340927	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  09-15 394A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection to a blood disorder, to include as secondary to herbicide exposure.

4.  Entitlement to service connection for a respiratory condition, to include as secondary to herbicide exposure.

5.  Entitlement to service connection for a heart disorder, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1970 to June 1972.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran originally requested a hearing before a Decision Review Officer (DRO).  However, in March 2011, the Veteran withdrew that hearing request.  Therefore, Board adjudication of the current appeal may go forward without a hearing.  See 38 C.F.R. §§ 20.703, 20.704 (2013).

The Veteran testified at a Board hearing at the RO in Houston, Texas in July 2013.  This transcript has been associated with the file.

In a February 2013 rating decision the Veteran was granted service connection for tinnitus and a skin disorder.  The Veteran has not disagreed with the assigned disability ratings or the effective dates.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.)  Therefore, these matters are considered resolved and are not in appellate status. 

The issues of entitlement to service connection for PTSD and a respiratory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The competent evidence of record does not indicate the Veteran has a bilateral hearing loss disability for VA purposes.

2.  The competent evidence of record does not reveal that the Veteran has been diagnosed with a blood disorder, to include as secondary to herbicide exposure.

3.  The competent evidence of record does not reveal that the Veteran has been diagnosed with a heart disorder, to include as secondary to herbicide exposure.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  The criteria for entitlement to service connection for a blood disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

3.  The criteria for entitlement to service connection for a heart disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  Here, the Veteran was provided with the relevant notice and information in March and May 2006 letters prior to the initial adjudication of his claims.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled).  He has not alleged any notice deficiency during the adjudication of her claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records and VA records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

As noted, the Veteran testified at a Board hearing in July 2013.  The hearing was adequate as the Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.



Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may also be granted for a chronic disease, including hearing loss, when it is manifested to a compensable degree within one year of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

A presumption exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.

Service connection may be presumed for residuals of Agent Orange exposure by showing two elements.  First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e).  Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 C.F.R. § 3.313(a) (2013).  

The Veteran has confirmed service in Vietnam from October 1971 to June 1972 and is therefore presumed to have been exposed to herbicide agents.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  

The Veteran is alleging that his current hearing loss is due to exposure to loud noise in the military.  See e.g., February 2007 VA examination report.  He also contends that his blood and heart disorders are secondary to herbicide exposure. 

With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id.

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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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.  

In reviewing the service treatment records the Veteran did show evidence of some hearing loss during active duty in his entrance examination at the 500 Hertz level and on separation at most Hertz levels.  See Hensley, supra.  The Veteran was not diagnosed with a blood or heart disorder while on active duty.  Following service the Veteran has submitted statements indicating that he experienced hearing loss beginning in service and continuing on thereafter.

A May 2006 treadmill test revealed normal sinus rhythm with apparent pulmonary disease pattern; no arrhythmias were present.  The Veteran had a normal heart rate and no changes suggestive of ischemia.  A July 2006 treatment record found a normal ejection fraction.  In January 2007 the Veteran reported previous heart problems and using a Holter monitor for arrhythmias.

The Veteran was afforded a VA audiological examination in February 2007.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
15
15
LEFT
15
10
10
10
15

The Veteran's speech recognition scores on the Maryland CNC Test were 100 percent bilaterally.  

In January 2013 the Veteran was afforded a VA examination for his heart.  The examiner noted the possible arrhythmia in 2006-2007.  The examiner also reviewed prior reports which found no evidence of a cardiac condition and no evidence that the Veteran was taking medication for a heart condition.



The Veteran was afforded a VA audiological examination in February 2013.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
20
25
LEFT
20
20
10
20
25

The Veteran's speech recognition scores on the Maryland CNC Test were 96 percent for the right ear and 98 percent for the left ear.  Although the examiner related the Veteran's hearing loss to service, there is no competent evidence of record to show that the Veteran's bilateral hearing loss disability was measured by an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or greater, or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent.  38 C.F.R. § 3.385.  Accordingly, he does not have hearing loss for VA purposes.

Although the Veteran had some hearing loss noted on his entrance and separation examinations, at no time during the appeal period did the Veteran have a bilateral hearing loss disability for VA purposes.  Furthermore, the Veteran does not meet the presumption for a hearing loss disability which manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  

The Veteran is presumed to have been exposed to Agent Orange, but he has not been diagnosed with a blood or heart disorder which may be related to herbicide exposure.  Accordingly, the presumption is inapplicable.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  

Without a current diagnosis of a disability, the Board cannot grant service connection.  To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability.  See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.).

The Board has considered the Veteran's statements that he currently has blood and heart disorders as a result of active duty service.  The Veteran is competent to report observable symptoms, such as chest pain.  Layno v. Brown, 6 Vet. App. 465 (1994).  

Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing and determining the etiology of and blood and heart disorders falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In this case, given the Veteran's lack of medical expertise, his assertions that he currently has blood and heart disorders that are related to service are beyond his competence.  

Accordingly, the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for a blood disorder is denied.

Entitlement to service connection for a heart disorder is denied.





REMAND

At the Veteran's January 2013 VA examination for PTSD the examiner referenced a March 2011 VA psychological assessment that is not of file.  On remand any outstanding VA treatment records should be obtained and associated with the claims file.  The RO should also attempt to verify the Veteran's stressors that his unit experienced rocket and mortar fire.  The Veteran should then be afforded a new VA examination for his PTSD.

At the Veteran's January 2013 VA examination the examiner diagnosed the Veteran with asthma and noted that while it preexisted service, there was no evidence that it had been worsened or aggravated by service.  The examiner did not use the appropriate standard in coming to this conclusion.  Accordingly, an addendum opinion should be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all of the Veteran's outstanding VA treatment records.  All information which is not duplicative of evidence already received should be associated with the claims file.  If the RO is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim.  38 U.S.C. § 5103A(b)(2) (West 2002).

2.  The RO should attempt to verify the Veteran's claimed stressor involving mortar and rocket fire, through the appropriate channels, to include the Joint Services Records Research Center (JSRRC).  See July 2013 Board hearing transcript.  The JSRRC should be provided with all pertinent information, including copies of personnel records, units of assignment, and stressor statements.  Alternative sources of evidence should also be explored.  The results of such requests, whether successful or unsuccessful, should be documented in the claims file, and the Veteran informed of any negative results.

3.  After completing the above directives, AND IF ANY NEW EVIDENCE IS OBTAINED INDICATING THAT AN UPDATED VA MENTAL DISORDERS EXAMINATION IS WARRANTED (I.E., IF ANY NEWLY OBTAINED EVIDENCE SUGGESTS THAT THE VETERAN HAS PTSD), return the claims folder to the January 2013 VA examiner for an addendum to report whether the Veteran has PTSD or other psychiatric disorder.

If deemed necessary by the examiner after review of the file, or by the RO, schedule the Veteran for an appropriate VA examination.  The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.  

The examiner should state whether the Veteran has PTSD, or any other psychological disorder, that is related to service. 

A detailed explanation should be provided for all opinions.  Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why such an opinion cannot be rendered.

4.  Request that the January 2013 VA examiner offer an addendum opinion regarding the Veteran's respiratory/pulmonary condition.  The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination.

The examiner should provide the following opinions:

a)  Whether there is clear and unmistakable (I.E.,  MEDICALLY AND FACTUALLY UNDEBATEABLE) evidence that any respiratory disorder existed prior to service; AND IF SO, 

b)  Whether there is clear and unmistakable evidence (I.E., IS IT MEDICALLY AND FACTUALLY UNDEBATEABLE) that shows the condition was NOT permanently aggravated in service beyond the natural progression of the disorder.

c)  Whether the Veteran's current asthma is otherwise related to service.

The examiner should provide a complete rationale for any opinion provided.  Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why.

If further examination of the Veteran is needed, he should be scheduled for an examination.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2013).  

5.  Ensure the opinions are responsive to these determinative issues.  If they are not, take any needed corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2.

6.  After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court 






of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs