Citation Nr: 1801192 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-30 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for kidney disorder as secondary to service connected Type II diabetes mellitus. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Noh, Associate Counsel INTRODUCTION The Veteran had active military service from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010, November 2010, and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2017. A transcript of the hearing has been associated with the claims file. The issues of service connection for bilateral hearing loss and a kidney disorder as secondary to service connected diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no evidence of record which establishes that the Veteran has an ischemic heart disease. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In this case, VA satisfied its duty to notify the Veteran by way of April 2010, January 2011, and April 2011 letters. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, post-service outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issue decided herein. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examination in October 2010. Based on the examination and the records, VA medical examiner was able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran. II. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be 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. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Service connection may also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed, such as ischemic heart disease. Id. Ischemic heart disease is defined as "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." Id. However, the term ischemic heart disease specifically "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 3. The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran filed a claim for service connection for ischemic heart disease; he claims that service connection for this disorder is warranted because he was exposed to herbicide agents during active service. The Board finds, however, that the evidence of record does not show that ischemic heart disease has ever been diagnosed. A review of the service treatment records, including pre-induction and separation examinations, show that the Veteran had a normal heart with no complaints, treatment, or symptoms of pain or pressure in the chest, or palpitation or pounding of the heart. A review of post-service treatment records shows that the Veteran has had unremarkable cardiac findings. Specifically, the Veteran's heart was noted to have regular rate and rhythm, normal S1 and S2, no murmurs, gallops, or rubs. His blood pressure and heart rate was within normal limits. Further, except for a one-time incident, the Veteran generally denied chest pain, shortness of breath, and dizziness. Even in the August 2017 hearing, the Veteran admitted that he has never been diagnosed with coronary artery disease or any heart-related condition. At the October 2010 VA examination, the Veteran was diagnosed with hypertension, but no other cardiac disorder was noted. The Board acknowledges the Veteran's statement that he has ischemic heart disease that he believes is related to service. However, the Board finds that there is low probative value to the Veteran's statement as he is not competent to identify his condition as such identification requires medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). Thus, the Board finds that there is no competent and credible evidence of record that establishes that the Veteran has ischemic heart disease. Further, although the Veteran has been diagnosed with hypertension, the regulations are clear that hypertension is not considered ischemic heart disease for purposes of presumptive service connection. 38 C.F.R. § 3.309 (e), Note 3. Despite the Veteran's claim for ischemic heart disease, the evidence of record does not show that he has the claimed disability. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for ischemic heart disease. The benefit-of-the-doubt rule does not apply and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents, is denied. REMAND The Board finds that additional development is needed before the remaining claims can be decided, as addendum opinions are required in order to determine the nature and etiology of the Veteran's bilateral hearing loss and kidney disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A. Kidney Disorder At the August 2017 hearing, the Veteran stated that he has a kidney disorder. The Veteran alleged that his physicians told him "off the record" that his kidney issues were secondary to his service connected diabetes mellitus. A review of the service treatment records, including pre-induction and separation examinations, shows normal endocrine and genitourinary systems with no complaints or symptoms of any kidney-related condition. Further, during service, the Veteran denied having any kidney stone or blood in his urine. A review of post-service treatment records show that the Veteran had some renal insufficiency in November 2003 and was actually diagnosed with chronic renal disease in September 2010. In the January 2011 VA examination, the examiner noted that there was renal insufficiency in 2003 but it was due to the use of NSAIDS and diuretics. Once those medications were changed, the examiner opined, the Veteran's renal functions returned to normal. The examiner further stated that the Veteran did not currently have an issue with his kidneys as the serum and urine renal functions were within normal range. However, the examiner did not address the September 2010 diagnosis of chronic renal disease. Further, the treatment records show that labs were ordered for November 2010. These lab results are not in the record. As such, the Board finds that further records must be furnished and an addendum opinion is needed. B. Bilateral Hearing Loss At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service as an infantryman in Vietnam. Therefore the second element of service connection has been met. What remains for consideration is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure. A review of the service treatment records show that the Veteran had normal ears and drums with no complaints, symptoms, signs, or diagnoses of bilateral hearing loss. In fact, the service treatment records show the Veteran affirmatively denied any ear trouble while in service. The audiographs conducted at pre-induction and separation revealed normal findings. Even a review of post-service outpatient treatment records show that the Veteran did not complain of decreased hearing acuity for many years after separation from service. The treatment records show that he had an inner ear infection in 2002 and mastoiditis in 2009. In March 2008, the Veteran affirmatively denied ear aches, ear drainage, hearing loss, and ringing in his ears. His auditory canals were normal bilaterally. The Veteran was not diagnosed with bilateral hearing loss until the August 2012 VA examination. At that time, the examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service as no defects nor abnormalities were noted at his separation examination, and the Veteran denied hearing loss and ear trouble at the time. The Board finds the examiner's rationale is insufficient as the examiner limits his reasoning to those findings in service. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service noise exposure and his current disability). Thus, an addendum opinion is required to thoroughly address the nature and etiology of the Veteran's bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran, in particular the November 2010 renal lab results from Dr. M. Phillippe. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Obtain addendum opinions from appropriate medical professionals. The claims file must be made available to be reviewed by the examiners, and a note that it was reviewed should be included in the reports. If the reviewers determine that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Kidney Disorder-After reviewing the claims file, the reviewer must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's kidney disorder had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the September 2010 diagnosis of chronic renal disease. The examiner must also determine if it is at least as likely as not that any diagnosed kidney disorder has been caused by or aggravated by the Veteran's service-connected diabetes mellitus. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Bilateral Hearing Loss-After reviewing the claims file, the reviewer must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's current hearing loss disability is related to the confirmed noise exposure in service. In reaching her or his conclusions, the examiner is asked to remember that the Veteran's in-service exposure to acoustic trauma is conceded. The examiner must also remember that in Hensley v. Brown, 5 Vet. App. 155 (1993), the Court of Appeals for Veterans Claims specifically held that a Veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity. As such, an etiology opinion which is based solely on the findings of normal hearing in service is inadequate. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the Veteran's claims based on the new evidence of record. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period to respond. 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 is 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. §§ 5109B, 7112 (2012). ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs