Citation Nr: 1800898 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-35 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety. 2. Entitlement to service connection for a chronic heart disorder, to include atrial fibrillation, mitral regurgitation (MI), residuals of a cerebrovascular accident (CVA), aortic sclerosis, and hypertension (HTN), to include as a residual of exposure to an herbicidal agent (Agent Orange). 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 15, 2011, and July 26, 2011, rating decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, a video conference hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file. In June 2015, the claims were remanded for additional evidentiary development. The case has now been returned to the Board for further appellate consideration. Evidence pertinent to the claim of entitlement to service connection for bilateral hearing loss was added to the record since the November 2015 supplemental statement of the case (SSOC) without RO review and issuance of a new SSOC. Specifically. VA audiometric examination dated in January 2017 was conducted, and the report is now included in the claims file. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is added to the claims file that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the medical evidence added, while pertinent, is essentially duplicative of evidence previously considered by the RO. Thus, a remand is not necessary. See 38 C.F.R. §§ 19.31, 19.37, 20.800, 20.1304(c) (2017). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. FINDINGS OF FACT 1. A chronic acquired psychiatric disorder is not currently demonstrated; previous psychiatric diagnoses are either not of service onset or otherwise related thereto or do not meet the diagnostic criteria for a valid diagnosis. 2. Heart disease, to include supraventricular arrhythmia, valvular heart disease, and HTN, did not manifest until many years after service discharge and was not caused by service, including inservice exposure to Agent Orange. 3. Hearing loss for VA disability purposes was not manifested during service, did not manifest to a compensable degree within one year of service separation, and the Veteran's currently diagnosed bilateral hearing loss is not causally or etiologically related to his military service, to include noise exposure therein. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.25 (2017). 2. A heart disorder, to include supraventricular arrhythmia, mitral valve disease, and HTN, was not incurred in or aggravated by service, may not be presumed to be, and is not the result of Agent Orange exposure. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 3. The criteria are not met to establish service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed Cir. 2016) (applying Scott to a duty to assist argument). Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may 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) (2017). In addition, certain chronic diseases (e.g., arteriosclerotic heart disease (ASHD) and sensorineural hearing loss) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Acquired Psychiatric Disorder Entitlement to service connection for PTSD requires that three elements be present: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) combat status or credible supporting evidence that the claimed in-service stressors occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304(f) (2017); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Therefore, service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the Diagnostic and Statistical DSM-IV, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a) (2017). As an initial matter, during the course of the appeal the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (August 4, 2014) (effective August 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-5, as opposed to the DSM-IV. Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran's claim was pending before the Board prior to August 4, 2014, whether the Veteran has a diagnosis of PTSD will be determined based on the criteria in the DSM-IV. Furthermore, the evidence necessary to establish that a claimed in-service stressor occurred varies depending on whether a veteran "engaged in combat with the enemy." See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence, and no further development or corroborative evidence will be necessary. Service department evidence that the veteran engaged in combat or that a veteran was awarded the Purple Heart, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2017). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. In this context, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3) (2017). In this case, the Veteran's military records show combat status and his reported stressors are related to his combat service. Thus, his stressors have been corroborated, and the determination as to this claim does not rest on whether he was exposed to stressors. It is conceded that he was. Agent Orange Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2017) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2017) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2017). More recent amendments to 38 C.F.R. § 3.309(e) (2017) have been made to include hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) as a diseases associated with herbicide exposure. However, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2 (2017). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Further, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for certain diseases, including skin cancers. See 75 Fed. Reg. 81332 (Dec. 27, 2010). Background As previously noted, the Board remanded these claims in June 2015 for additional evidentiary development, to include review of the record by VA examiners and examination of the Veteran, when appropriate. Specifically, VA mental health, cardiovascular, and audiometric opinions were to be provided. The requested opinions are now of record, and the Board will proceed with consideration of the Veteran's claims below. Initially, it is noted that the June 2015 Board remand includes a detailed summarization of the pertinent evidence of record dated up to that period. It will not be repeated here. Following the Board's 2015 remand, additional treatment records were added to the record. These documents reflect current private treatment for cardiovascular ailments, to include permanent atrial fibrillation, pulmonary HTN, and status post left atrial appendage excision with mitral valve repair. Upon VA mental health examination in October 2015, it was noted by the examiner that the claims file was reviewed, to include the conflicting evidence noted in the Board's June 2015 remand. The Veteran was also examined, and it was noted that he described combat stressors related to his time in the Republic of Vietnam. However, it was the examiner's opinion that the Veteran did not meet the criteria for a diagnosis of PTSD. For rationale, it was noted that he did not exhibit any of the listed symptoms to the level of severity designated for each symptom on the list as provided by the Disability Benefits Questionnaire (DBQ). Further, results of testing did not reflect diagnosis of any current acquired psychiatric disorder. It was noted that the Veteran denied significant symptoms of depression, anxiety, hypomania, or thought disorganization. VA also conducted a cardiovascular examination to address the medical questions raised regarding the Veteran's variously diagnosed heart conditions. The August 2015 examination report reflected current diagnoses of supraventricular arrhythmia, valvular heart disease, status postoperative mitral valve repair, and status postoperative maze procedure, and removal of left atrial appendage. The examiner opined that the conditions claimed were less likely as not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. For rationale, the examiner noted that the Veteran did not have any known coronary artery disease or ischemic heart disease. Instead, his cardiovascular diagnoses of atrial fibrillation and mitral valve regurgitation was most likely due to three nonservice-connected etiologies, to include long-standing HTN, valvular disease of mitral regurgitation, and aging. His mitral regurgitation was most likely due to his HTN, aging, and congenital heart abnormality. The examiner specifically noted that there was no medical evidence showing the presence of ischemic heart disease. Moreover, the examiner noted that the accepted medical literature showed that the heart conditions of atrial fibrillation and mitral valve disease were not caused by Agent Orange exposure. As to the Veteran's claim of service connection for bilateral hearing loss, additional VA examination was requested by the Board in June 2015, if the 2014 examiner was unavailable to provide an addendum. Review of the record reflects that VA audiometric examination was conducted in September 2015 by another VA physician. On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 70 85 85 105 LEFT 55 75 85 85 80 The average pure tone threshold loss was 86 in the right ear and 81 in the left ear. Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 84 percent in the left ear. Bilateral sensorineural hearing loss was noted. The VA audiologist opined that while the Veteran currently showed bilateral sensorineural hearing loss, it was not the result of active service. For rationale, she noted that the Veteran had normal hearing during service, to include at the time of separation, under either International Standards Organization (ISO) or American National Standards Association (ANSA) conversions. Other likely potential etiologies for hearing impairment in this case included, but were not limited to, advancing age and post service civilian noise exposure. Also of record is a 2017 VA audiometric examination report which corroborates the 2015 findings regarding hearing impairment. Analysis The Veteran seeks service connection for chronic mental health and cardiovascular conditions, as well as for bilateral hearing loss. Based on the objective and subjective evidence of record, however, each of the claims must be denied in that no current mental disorder is demonstrated, and because it is not shown that his cardiovascular conditions or his hearing loss are of service origin. Specifically, as to the Veteran's claim of service connection for a chronic psychiatric disorder, it is noted due to conflicting medical diagnoses, the Board remanded the claim in 2015 for additional evidentiary evaluation. As noted above, it was specifically noted by the VA examiner in 2015 that while the Veteran's inservice stressors were conceded, he did not meet the criteria for a diagnosis of PTSD. As to the previous diagnosis of PTSD, in October 2010, the 2015 examiner pointed out that at the time of the earlier diagnosis, the Veteran noted that his PTSD symptoms were infrequent and there was no systematic assessment of all criteria documented. The 2015 examiner questioned whether the Veteran actually met the full criteria at that time. Additionally, the Veteran's report of the frequency and intensity of intrusive thoughts and nightmares was not sufficient to satisfy criterion B for a PTSD diagnosis. No current chronic acquired psychiatric disorder was diagnosed at the October 2015 VA examination. As to the previous diagnosis of adjustment disorder with anxiety, the 2015 VA examiner indicated that the disorder was no longer present. She noted that when such diagnosis was made in 2011, it was not related to service. As found by the May 2011 VA examiner, the Veteran's adjustment disorder with anxiety was primarily due to his fear and worry over his physical condition. (The Board notes that service connection is in effect only for tinnitus.) Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131 (2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1131 (2012), as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The United States Court of Appeals for the Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent evidence of a current acquired mental health disorder, or of a previously diagnosed disorder which was of service onset or otherwise related thereto, to include PTSD or adjustment disorder with anxiety, the claim must be denied. The Veteran's claim for service connection for a chronic heart disorder must also be denied. As reported above, he does not have any known coronary or ischemic heart disease. His heart disorders are diagnosed as atrial fibrillation, valvular disease of mitral regurgitation, and HTN. Each of these heart disorders were not of service origin according to the VA examiner in 2015. For rationale, he noted that these conditions were not seen during service or until many years later. Moreover, they are not accepted in the medical literature to result from exposure to Agent Orange, and they had more likely etiologies which are not service connected. The Board finds that the 2015 examiner's report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's heart disorders. The opinion is based on a review of the Veteran's complete medical records and examination of the Veteran. Thus, it takes into account the medical evidence in favor of and against the claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. Thus, service connection for a chronic heart disorder, to include as a residual of Agent Orange exposure, is denied. Finally, as to the claim for service connection for bilateral hearing loss, the 2015 opinion is the most probative evidence of record regarding this claim for the same reasons as stated above when discussing the Veteran's claim for a heart disorder. Moreover, it is specifically noted that the opinion provided by the VA audiologist reflected that the Veteran's hearing was normal at the time of service separation under either ISO or ANSI conversions. It was her opinion that the Veteran's current hearing impairment from many years later was unrelated to military service, to include noise exposure, and she provided alternative etiologies in explaining her rationale. A basis for a grant of service connection for bilateral hearing loss has not been presented. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for a chronic mental health disorder, a chronic cardiovascular disorder, and for bilateral hearing loss. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety, is denied. Service connection for a chronic heart disorder, to include as a residual of exposure to Agent Orange, is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs