Citation Nr: 1415243 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 09-03 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for cardiomyopathy, to include hypertension (HTN), coronary artery disease (CAD) and congestive heart failure (CHF), including as a result of exposure to herbicides. 2. Entitlement to service connection for diabetes mellitus (DM), including as a result of exposure to herbicides. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to a disability rating in excess of 10 percent for post-operative right inguinal repair scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to May 1972 and from November 1990 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Buffalo, New York, RO currently has jurisdiction of this case. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Exposure to herbicides in service has not been shown, nor is a presumption of exposure to herbicides raised by the facts. 2. Cardiomyopathy, to include HTN, CAD and CHF, did not have its onset in service or within one year thereafter, and has not been etiologically linked to the Veteran's service or any incident therein. 3. Diabetes did not have its onset in service or within one year thereafter, and has not been etiologically linked to the Veteran's service or any incident therein. 4. Asthma did not have its onset in service and has not been etiologically linked to the Veteran's service or any incident therein. 5. The Veteran's post-operative right hernia repair scar is painful; it is a superficial, linear and 4 cm. long and stable; and results in occasional limitation of function manifested by pain. CONCLUSIONS OF LAW 1. The criteria for service connection for cardiomyopathy have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for asthma have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 4. The criteria for a disability rating in excess of 10 percent for a post-operative right hernia repair scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. August 2007 and May 2008 letters satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The May 2008 letter informed the Veteran of the need to show that his residuals of a hernia repair had worsened. The claims were subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice with regard to these claims. The Veteran's representative notes the Veteran's allegations that he served in Vietnam for 2 months in 1970 during a training tour as an Armor Crewman. The representative argues that the appeal must be remanded for VA to assist the Veteran by securing the orders for the Veteran's 2-month training in Vietnam and associating them with the personnel records already of record. The representative further argues that should the orders not be secured, VA must provide a formal finding of unavailability for the record. The Veteran's service personnel and treatment records have been obtained. While specific orders for his 2-month training period in 1970 are not associated with the claim file, other personnel records clearly show that he attended the U.S. Army Training Center, in Ft. Knox, Kentucky, from July 6, 1970, to August 29, 1970, (8 weeks) for armor crewman training. His service treatment records further show that he was treated at Ft. Knox during this period. A remand for further development would be a redundant exercise, would serve no useful purpose, and would result only in additional delay without benefitting the Veteran. The Veteran's VA and private treatment records have also been obtained. Written statements from the Veteran are also of record. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. VA examinations were conducted in January 2008 and October 2011 to assess the severity of the Veteran's post-operative right inguinal repair scar; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. The Veteran was afforded a VA examination for claims for VA pension and an increased disability rating for post-operative right hernia repair scar. That examination report shows diagnoses of coronary artery disease (CAD), diabetes mellitus, type 2, and asthma. He was not afforded additional VA examinations for his claims for service connection for cardiomyopathy, diabetes and asthma, nor are such required because, other than the Veteran's assertions, there is no evidence that the claimed disabilities are associated with an event, injury, or disease in service. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Analysis In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence; that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. The lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. In this role, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including cardiovascular-renal disease, including hypertension, and diabetes, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a), service connection may also be established under 38 C.F.R. § 3.303(b) by: (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain herbicides (e.g. Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). If a Veteran is presumably exposed to herbicides under 38 C.F.R. § 3.307, there is a presumption of service connection for specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162 (1997). Ischemic heart disease, not including hypertension, and diabetes are specified diseases presumed service connected. The Veteran may, nonetheless, establish service connection if the evidence shows that his current disability was, in fact, caused by exposure to Agent Orange or some other incident of service. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). The Veteran contends he is entitled to service connection for diagnosed cardiomyopathy and diabetes, which he claims resulted from his exposure to herbicides during a 2-month training tour in Vietnam in 1970 as an Armor Crewman . He further contends that he is entitled to service connection for asthma as it had its onset during his second period of service after his return from the Persian Gulf and continued after his discharge from service. The Veteran's DD-214 and personnel records show he served in Europe during the Vietnam era. The DD-214 does not reflect any other foreign service and the Veteran was not awarded any decorations, medals or badges indicating he served in Vietnam. His personnel records further show that that, while he did received two months of training as an armor crewman in 1970, such training was at the U.S. Army Training Center, in Ft. Knox, Kentucky, from July 6, 1970, to August 29, 1970, (8 weeks). His service treatment records also show that he was treated at Ft. Knox during this period. The Board finds the Veteran's statement that he served in Vietnam for 2-months during armor crewman training to be directly contradicted by the evidence of record; not credible; and of no probative value. Accordingly, the Board finds that the Veteran is not entitled to a presumption of exposure to herbicides and presumptive service connection for cardiomyopathy and diabetes due to exposure to herbicides under 38 U.S.C.A. § 1116 is not warranted. Service treatment records for the Veteran's first period of service reflect no evidence of complaints, treatment, or diagnoses of cardiomyopathy, diabetes or asthma. The February 1972 discharge medical examination report shows clinical evaluation was normal in all categories and that urinalysis was negative for sugar. Private treatment records reflect the Veteran was initially diagnosed with borderline HTN in January 1984 and with HTN in June 1986. Private treatment records further reflect the Veteran had elevated blood sugar in September 1988. Service treatment records for the Veteran's second period of service reflect no evidence of complaints, treatment, or diagnoses of cardiomyopathy, diabetes or asthma. An October 1990 medical examination report shows that a urinalysis was negative for sugar. An October 1990 cardiovascular risk screening revealed a normal EKG with a blood pressure reading of 130/68. Post-service treatment records show the Veteran was hospitalized in September 2000 for diagnosed anterior wall infarction with no prior cardiac history. Although he gave a prior history of HTN and asthma, there was no history of diabetes noted at the time. He underwent 2-vessel cardiac bypass surgery in September 2000. Subsequent diagnoses include cardiomyopathy, CAD, and CHF. An October 2007 VA treatment record and a January 2008 VA examination report both note the Veteran's history of first being diagnosed with diabetes in 2000. The January 2008 VA examination report further notes the Veteran's reported history of the onset of asthma in service shortly after his return from the Gulf War with ongoing attacks approximately 2 times a week. The diagnoses included asthma. There are no subsequent treatment records for diagnosed asthma. Cardiomyopathy The Veteran does not claim that his cardiomyopathy had its onset in service or within one year of his discharge from either period of service; nor does any of the evidence suggest his currently diagnosed cardiomyopathy either had its onset in service or within one year of his discharge from either period of service. The claim file contains no evidence etiologically linking the Veteran's cardiomyopathy to his service or any incident therein. The evidence of record shows the onset of HTN was no earlier that January 1984, almost 12 years after his first discharge from service and more than 6 years prior to his second period of active duty. Likewise, there is no objective evidence that his hypertension worsened during his second period of service, and no objective evidence etiologically linking it to either period of service or any incident therein. To the extent the Veteran asserts a causal relationship between cardiomyopathy and his service, an etiological opinion is not a question that can be competently answered by him as a lay person as such falls far outside the realm of common knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim for service connection for cardiomyopathy; there is no doubt to be resolved; and service connection for cardiomyopathy is not warranted. Diabetes The Veteran does not claim that his diabetes had its onset in service or within one year of his discharge from either period of service, nor does any of the evidence suggest his currently diagnosed diabetes mellitus either had its onset in service or within one year of his discharge from either period of service. The objective evidence of record reflects he was first diagnosed with diabetes in 2000, nine years after his discharge from his second period of active duty. The claim file contains no evidence etiologically linking the Veteran's diabetes to his service or any incident therein and the Veteran is not competent to provide an etiological opinion regarding his diabetes. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim for service connection for diabetes; there is no doubt to be resolved; and service connection for diabetes is not warranted. Asthma Although the Veteran claims his asthma had its onset in service shortly after his return from the Persian Gulf, there is no competent evidence of record that even suggests that his currently diagnosed asthma either had its onset in service or is etiologically linked to his service or any incident therein. While the Veteran is competent to provide evidence regarding his symptoms at the time, he is not competent to provide an opinion etiologically linking his currently diagnosed asthma to his service. At an October 2011 informal hearing with a Decision Review Officer, the Veteran indicated he was diagnosed with asthma after his return from the Gulf and would attempt to provide medical evidence from his private physician who treated him since that time. However, the Veteran has provided no such medical evidence etiologically linking his currently diagnosed asthma to his service or demonstrating treatment for such either during service or since his discharge from service. The claim file contains no evidence etiologically linking the Veteran's asthma to his service or any incident therein. The preponderance of the evidence is against the claim for service connection for asthma; there is no doubt to be resolved; and service connection for asthma is not warranted. Increased Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for a post-operative right inguinal hernia repair scar was granted in a February 1992 rating decision, and a 10 percent initial disability rating was assigned effective from July 15, 1991 to September 17, 1991, a 100 percent effective from September 18, 1991, and a noncompensable disability rating was assigned effective November 1, 1991. During the course of the Veteran's appeal, the rating was increased to 10 percent, effective May 21, 2007, the date he submitted his current claim. The Veteran's service-connected post-operative right inguinal repair scar is currently rated 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804. A 10 percent rating is the maximum evaluation under this diagnostic code. A VA examination conducted in January 2008 noted the Veteran had a superficial scar over the right groin that was nontender to palpation, and measured 2.5 x 0.8 inches. Although the scar was a little depressed, there was no adherence to underlying tissue. The scar was stable with no inflammation, edema or keloid formation. The scar was hyperpigmented. There was no inflexibility of the skin or limitation of motion caused by the scar. The Veteran reported that he experienced occasional pain and discomfort over the hernia site, approximately 1 to 2 times a month, that lasted for approximately a week. During an October 2011 VA examination, the examiner noted the Veteran had a 4 cm. linear scar in the right inguinal area that was not unstable. The examiner noted that the scar was painful and that it resulted in limitation in function as the Veteran reported he experienced pain in the scar area when he walked long distances or sometimes during sexual activity. The examiner opined that the scar did not impact on the Veteran's ability to work, and noted that the Veteran was retired. The schedule for rating disabilities concerning the evaluation of scars was amended effective October 23, 2008. The revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply. 73 Fed. Reg. 54708 (Sept. 23, 2008). All Diagnostic Codes discussed below are the versions in effect prior to October 23, 2008. Under Diagnostic Code 7801, which governs scars, other than the head, face, or neck, that are deep or cause limited motion, a 20 percent evaluation is assigned when the area or areas exceed 12 square inches (77 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. The evidence does not support a higher rating under Diagnostic Code 7801. The January 2008 and October 2011 VA examination reports indicate the post-operative right inguinal repair scar measured 2 1/2 x 1/8 inches and 4 cm. respectively. These measurements are significantly less than the 12 square inches needed for a higher evaluation. The VA examiners also indicated that the post-operative right inguinal repair scar was superficial (i.e. not deep) and did not cause any limited motion. Diagnostic Codes 7802 and 7803 do not provide for ratings higher than 10 percent, which the Veteran already has, and will not be discussed. Under Diagnostic Code 7805, other types of scars will be rated based on limitation of function of the affected part. Diagnostic Code 7805 is inapplicable because, although the October 2011 VA examiner noted some limitation of function exhibited by occasional pain with sexual activity or walking a long distance, the objective evidence does not show that the Veteran's scar produces any consistent limitation of function or disabling effects other than pain, such as limitation of motion, that would warrant a rating in excess of 10 percent. The preponderance of the evidence is against the claim for an increased disability rating for post-operative right inguinal repair scar; there is no doubt to be resolved; and a disability rating in excess of 10 percent for the post-operative right inguinal repair scar is not warranted. The evidence shows that the Veteran's service-connected post-operative right inguinal repair scar results in occasional limitation of function manifest by pain; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule; the assigned scheduler evaluation for the service-connected post-operative right inguinal repair scar is adequate; and referral for consideration of an extraschedular evaluation is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). A claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. The Veteran, however, has either been employed or retired as a result of his nonservice-connected heart condition during the pendency of the claim. The October 2011 VA examiner specifically noted that the Veteran's post-operative right inguinal hernia scar did not impact his ability to work. He has not indicated, and the record does not show, that his post-operative right inguinal hernia scar precludes him from obtaining substantial employment. As such, the issue of entitlement to a total disability rating based on TDIU has not been raised. ORDER Service connection for cardiomyopathy is denied. Service connection for diabetes is denied. Service connection for asthma is denied. Entitlement to a disability rating in excess of 10 percent for a post-operative right inguinal hernia repair, is denied. REMAND The Veteran and his representative contend that he should be provided a VA examination to determine the etiology of his claimed bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss that is a result of his exposure to acoustic trauma during his first period of service. He contends that he was exposed to loud noise from a 2-month armor crewman training assignment. He is competent to report that he was exposed to loud noises in service and has experienced bilateral hearing loss since service. Further, VA treatment records show he reported exposure to SCUD attacks during his second period of service in the Persian Gulf. The Veteran's DD 214s show that his military occupational specialty was as a clerk during his first period of service and as a food service supervisor during his second period of service. The DD 214 for his first period of service further shows that he had 8 weeks training as an armor crewman in 1970. Service treatment records show no complaints, findings, treatment or diagnoses of bilateral hearing loss. A VA examination and medical opinion under the duty to assist are needed to decide the claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5103A (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA treatment records since February 2010 have not been associated with the Veteran's claim file. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since February 2010 from the Rochester, New York, VA Outpatient Clinic. 2. Schedule the Veteran for a VA audiological examination. The entire claim file (i.e., both the paper claim file and any medical records contained in Virtual VA and VBMS) is to be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA or VBMS, any treatment records contained in those files must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss, if found, is related to service. The VA examiner must discuss the Veteran's history of in-service noise exposure. A complete rationale for all opinions expressed must be provided. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any further development required, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs