Citation Nr: 1751587 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-15 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a kidney condition, to include as secondary to diabetes mellitus type II. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II and/or due to exposure to herbicides. 3. Entitlement to service connection for a heart condition, to include as secondary to diabetes mellitus type II and/or due to exposure to herbicides. 4. Entitlement to service connection for an eye condition, to include as secondary to diabetes mellitus type II and/or due to exposure to herbicides. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to a total disability rating based upon individual unemployabilitly (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1967, including service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) from July 2007 (hypertension and kidney condition), June 2009 (heart condition, eye condition and TDIU), and March 2013 (hearing loss) decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. These matters were previously remanded by the Board in August 2015 and December 2016 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The matters of service connection for hypertension, a kidney condition, an eye condition and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam. 2. The competent evidence supports a diagnosis of coronary artery disease. 3. A hearing loss disability of either ear was not manifested in service, sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and the preponderance of the evidence is against a finding that his current bilateral hearing loss disability is related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some chronic diseases (to include SNHL as an organic disease of the nervous system and cardiovascular-renal disease) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned diseases). 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309. When certain chronic diseases are at issue, such as the aforementioned or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Heart Condition The Veteran seeks service connection for a heart condition, which he contends is related to in-service herbicide exposure and/or caused or aggravated by diabetes mellitus type II. Notably, an April 2014 rating decision severed service connection for type II diabetes mellitus and an August 2015 Board decision upheld this determination. Thus, service connection for type II diabetes mellitus has been properly severed and the second element of a secondary service connection claim is not satisfied. Wallin, 11 Vet. App. at 512. As such, the claim of service connection for a heart condition as secondary to diabetes mellitus type II is without legal merit. As determined in the August 2015 and December 2016 Board decisions, the Veteran served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to herbicides during active service. 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Ischemic heart disease (IHD) is a disease associated with exposure to herbicides. 38 C.F.R. § 3.309(e). The provisions of 38 C.F.R. § 3.309(e) expressly provide that "ischemic heart disease" includes "atherosclerotic cardiovascular disease including coronary artery disease (CAD)." An October 2015 VA examination report includes a diagnosis of hypertensive heart disease and an opinion that the Veteran's "heart condition does not qualify with generally accepted medical definition of ischemic heart disease." Similarly, a January 2016 addendum opinion notes "[a]t this moment no medical evidence of coronary artery disease." However, private treatment records obtained after the January 2016 addendum opinion include a coronary stenting report showing preoperative and postoperative diagnoses of CAD with estimated artery opening of 75%; an abnormal EKG with the notations "[c]annot rule out anterior infarct;" and January 2016 Cardiac Catheterization Report which shows the Veteran underwent an angiogram and the findings were interpreted as plaque within the coronary arteries. In addition, May 2016 and March 2017 VA outpatient treatment records note the Veteran's history of coronary artery disease status post January 2016 stent placement. Affording the Veteran the benefit of the doubt, as the record shows he has been diagnosed with coronary artery disease, undergone cardiac catheterization, and VA treatment records note his history of coronary artery disease. The Board finds that diagnosis of coronary artery disease is demonstrated by the record. His CAD is presumed to have been caused by his exposure to herbicides in Vietnam and service connection is granted. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6), 3.309(e). Bilateral Hearing Loss The Veteran also claims service connection for bilateral hearing loss as a result of noise trauma in service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. With regard to the first element of service connection, it is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 (such was found on official audiometry). See March 2013, September 2014 and January 2017 VA audiological examination reports and October 2015 and January 2016 addendum opinions. It may also reasonably be conceded that by virtue of his military occupation in service the Veteran had some exposure to hazardous levels of noise in service (and service connection for tinnitus has been granted based on such military noise exposure). Consequently, what remains necessary to substantiate his claim of service connection for bilateral hearing loss is competent evidence that his hearing loss is related to his service/noise trauma therein. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to the second element of service connection, the Veteran's service treatment records, notably his April 1965 pre-induction, January 1966 induction (whispered voice) and October 1967 separation examinations, indicate normal hearing, even after consideration of both ASA and ISO/ANSI conversion according to a VA examiner. See January 2017 VA audiological examination report. [Prior to January 1, 1967, service department audiometric test results were reported in standards set by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI). During the period between these two dates, data will be considered under both standards.] In addition, review of the record shows that the initial post service complaint of or treatment for hearing loss was not until February 2010, 43 years after service separation. As is noted above, the diagnosis of a hearing loss disability is established by specified audiometry, and such disability is not shown to have been manifested in service (and SNHL is not shown to have been manifested in the first post service year). Consequently, service connection for a hearing loss disability on the basis that such disability became manifest in service and has persisted since or on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. Also, the January 2017 VA examiner noted that the Veteran reported progressive hearing loss for about 8 years and there is no clinical evidence of audiological treatment or care until 2010; therefore, the preponderance of the evidence is against a finding of continuity of symptomatology since service. Service connection for a bilateral hearing loss disability may still be established by competent evidence that the Veteran's hearing loss, first documented many years after service is related to his service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Whether or not a current hearing loss disability may, in the absence of evidence of onset in service or of continuity of symptomatology since, be related to service/exposure to noise trauma therein is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). March 2013 and September 2014 VA audiological examination reports include the opinion that it was less likely than not that the Veteran's current hearing loss is related to service. These opinions were based on the absence of documented hearing loss in service. Finding the March 2013 and September 2014 opinions were insufficient, VA obtained October 2015 and January 2016 addendum opinions. In the October 2015 addendum, the examiner opined that the Veteran's bilateral high frequency hearing loss is not related to his military service from January 1966 to November 1967 because there was no evidence of complaints of or treatment for hearing loss in service or within one year of (or soon after) service separation and no evidence of audiological treatment for hearing loss until February 2010, 43 years after service. The examiner further explained that the Veteran is 69 years old and actual hearing loss could be the result of a natural aging process, due to hereditary factors, to post service noise exposure, or to a combination of all these factors. The examiner noted that the February 2010 audiological evaluation report includes the comment that "this is a 63 year old male veteran who reports normal hearing and denies history of tinnitus or otitis media." In a second January 2016 addendum, the same examiner explained that Veteran's lay statements and his conceded noise trauma in service does not change prior opinion because service separation examination showed normal hearing at all tested frequencies and there were no hearing loss complaints in service or post service until February 2010, 43 years after service separation. As the October 2015 and January 2016 addendum opinions were also found insufficient in that the examiner did not specifically discuss the Veteran's statements or the conceded exposure to acoustic trauma, the Veteran underwent another VA audiological examination in January 2017. The January 2017 examination report also include the opinion that the Veteran's bilateral hearing loss is less likely as not related to military noise exposure. After examination and interview of the Veteran and review of his claims file, the examiner noted the Veteran's hearing was within normal limits during service and after separation (even after considering of ASA to ISO/ANSI conversions), the Veteran reported an 8 year history of progressive hearing loss and post service occupational noise exposure as an electrician and the initial post service audiology treatment/care was not until February 2010, 43 years after service separation. Upon consideration of the Veteran's military noise exposure and the circumstances of his bilateral hearing loss, the examiner explained that "[i]t is well known that prolonged exposure to noise of high intensity and short duration, such as military type, could cause permanent damage in the structures of the inner ear, resulting in irreversible hearing loss. In the event of acoustic trauma, hearing deficits appear, either immediately after a noise trauma, or gradually, during the noise exposure period. No retroactive effect is expected to be seen as hearing loss with onset so many years after being exposed to military service. On the other hand, hearing loss might also be associated with the combined effect of post-service occupational and/or recreational noise exposure and the normal aging process due to progressive inner ear dysfunction." The Board finds that the January 2017 VA opinion with respect to the Veteran's bilateral hearing loss is entitled to great probative weight. In this regard, it was provided following examination of the Veteran and the examiner considered the Veteran's medical records, discussed the Veteran's medical history, provided a conclusive opinion, and offered clear reasoning explaining why the Veteran's current bilateral hearing loss is not related to service. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiners is a medical professional competent to offer the opinions; expressed familiarity with the Veteran's medical history; and the January 2017 opinion is supported by adequate rationale that cites to supporting factual data. The opinion is probative evidence in this matter and, in the absence of probative evidence to the contrary, is persuasive. While the Veteran believes that his current hearing loss is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his hearing disability is not competent medical evidence. In summary, a bilateral hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the current hearing loss disability is related to service. Accordingly, the appeal in this matter must be denied. ORDER Entitlement to service connection for coronary artery disease is granted. Service connection for bilateral hearing loss is denied. REMAND Regarding the matter of service connection for hypertension, the Board finds that additional development is necessary to determine whether the Veteran's hypertension and hypertensive heart disease is caused or aggravated by his now service-connected coronary artery disease. The claims of service connection for a renal condition, an eye condition and entitlement to a TDIU rating are inextricably intertwined with his claim of service connection for hypertension (and adjudication of entitlement to a TDIU rating must be deferred pending implementation of the grant of service connection for coronary artery disease, which was granted in the above decision). As noted in the prior August 2015 and December 2016 Board remands, the Veteran's eye condition was diagnosed as hypertensive retinopathy on April 2009 VA examination. Therefore, if the Veteran's hypertension were eventually service-connected, then an examination and opinion to determine whether his hypertensive retinopathy is related to his hypertension would be warranted. As such, remand is again warranted, pending development of the Veteran's hypertension claim. Also as noted in the December 2016 Board remand, an August 2006 VA kidney examination documents the Veteran's medical history including three or four past episodes of kidney stones. The Veteran stated that he was told these were due to gout which he first experienced in 1968, and most recently in 2002. The VA examiner noted that a review of up to date medical literature did not relate the Veteran's current mild renal insufficiency to herbicide exposure, but notably, the examiner stated that his claimed kidney condition could be related to hypertension. Given this indication that the Veteran's claimed kidney condition may be associated with his claimed hypertension, it is also inextricably intertwined and must be remanded. On remand, updated treatment records should also be obtained, to specifically include records from the Veteran's private cardiologist. Notably, the hospitalization records in connection with the Veteran's January 2016 cardiac catheterization have been obtained; however, VA treatment records note that he is followed by a private cardiologist for coronary artery disease. Such records have not been obtained and are not available for review. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include records from his private cardiologist and updated VA treatment records. 2. After the development requested in paragraph (1) is completed, please arrange for the Veteran to be examined by an appropriate specialist to determine whether his hypertension was caused or aggravated by his service-connected coronary artery disease. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on the examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by service-connected coronary artery disease? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is aggravated by (any worsening due to) service-connected coronary artery disease? c) If the examiner finds that the hypertension was not caused but is aggravated by service-connected coronary artery disease, the examiner should identify the baseline level of severity of hypertension prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. A complete rationale must be provided for all opinions rendered, citing to supporting clinical data and/or medical texts/treatises as deemed appropriate. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After the development requested in paragraphs (1) and (2) is completed, if and only if the Veteran's hypertension is found to be caused or aggravated by his service connected coronary artery disease, schedule the Veteran for an VA eye examination with a properly qualified examiner. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on the examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed eye condition, including hypertensive retinopathy, is caused by his hypertension? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed eye condition, including hypertensive retinopathy, is aggravated by his hypertension? c) If the examiner finds that the claimed eye condition, including hypertensive retinopathy, was not caused but is aggravated by service-connected coronary artery disease, the examiner should identify the baseline level of severity of the eye condition prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. A complete rationale must be provided for all opinions rendered, citing to supporting clinical data and/or medical texts/treatises as deemed appropriate. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After the development requested in paragraphs (1) and (2) is completed, if and only if the Veteran's hypertension is found to be caused or aggravated by his service connected coronary artery disease, schedule the Veteran for a VA kidney examination with a properly qualified examiner. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on the examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed kidney condition is caused by his hypertension? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed kidney condition is aggravated by his hypertension? c) If the examiner finds that the claimed kidney condition was not caused but is aggravated by service-connected coronary artery disease, the examiner should identify the baseline level of severity of the kidney condition prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. A complete rationale must be provided for all opinions rendered, citing to supporting clinical data and/or medical texts/treatises as deemed appropriate. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. When the development requested above is completed, the AOJ should review the record and consider all the available evidence, arrange for any further development deemed necessary, and readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the appropriate opportunity to respond. This case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs