Citation Nr: 1802156 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to July 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during his active military service in Thailand. 2. Resolving all doubt in the Veteran's favor, the Veteran has ischemic heart disease and diabetes mellitus, type II, that are related to exposure to herbicide agents during his active military service in Thailand. 3. The Veteran's bilateral hearing loss pre-existed military service and did not chronically worsen therein. 4. The probative evidence of record does not show that the Veteran's tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The Veteran's pre-existing bilateral hearing loss was not aggravated during active military service. 38 U.S.C. §§ 1110, 1153, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). 4. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied with regard to the Veteran's claims for entitlement to service connection for ischemic heart disease and diabetes mellitus, type II, the Board is not precluded from adjudicating these issues. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). This is so because the Board is taking action favorable to the Veteran by granting entitlement to service connection for ischemic heart disease and diabetes mellitus, type II. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). With respect to the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A letter dated in March 2012 satisfied the duty to notify provisions. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/ Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Additionally, the Veteran was afforded a VA examination February 2014. Review of the February 2014 VA opinion shows it to be adequate in this case, as the opinion was based upon a thorough review of the pertinent evidence of record and provides sufficient supporting explanation and rationale for the opinions provided. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's Board hearing, the Veteran was assisted at the hearing by an accredited representative. The representative and the Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claims on appeal. The hearing focused on the evidence necessary to substantiate the Veteran's claims. No pertinent evidence that might have been overlooked and that might substantiate the claims decided herein was identified by the Veteran or the representative. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, any error in notice or assistance by the VLJ at the October 2017 Board hearing constitutes harmless error. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). I. Ischemic Heart Disease and Diabetes Mellitus, type II In this instance, the Veteran was diagnosed with coronary artery disease, a form of ischemic heart disease, as early as March 2009, and diabetes mellitus, type II, in 2010. The Veteran has claimed exposure to herbicides while stationed in Thailand. He has also alleged that his duties in Thailand required several trips to Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease and type 2 diabetes are listed as diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. C&P has determined that special consideration should be given to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those Veterans. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C (M21-1) and M21-1, Part IV, Chapter 1, Section H. The Veteran's service personnel records clearly establish that he served in Thailand from March 1968 to April 1969. At all relevant times, the Veteran's military occupational specialty was ammunition storage specialist. Evidence of such a specialty by itself does not provide evidence that he served near the perimeter of the base. The Veteran has presented lay testimony and statements of herbicide exposure. During his October 2017 hearing before the Board, he testified that his job duties in Thailand required him to deliver ammunition and supplies along the perimeter of the base in Thailand and to the flight line. He explained that he frequently delivered ammunition and supplies to the flight line, and that he also unloaded supplies from aircraft. He reported that he regularly (two to three times per week) drove around the flight line and the perimeter of the base delivering ammunition. He stated that he did not believe that he ever dropped off supplies in the Republic of Vietnam, but noted that he did travel throughout the jungle. The Veteran served on active duty for a period of the Vietnam War during which VA has acknowledged that herbicides were used near air base perimeters in Thailand. Although the Veteran's service personnel records do not specifically corroborate his lay statements that his duties placed him along the perimeter of the base in Thailand and along the flight line, the Board finds the Veteran's statements to be credible and consistent with the circumstances, conditions, and hardships for service as an ammunition storage specialist. There is also no evidence in the file that is inconsistent with the Veteran's lay statements that he worked on the perimeters of the base and along the flight line. Resolving all doubt in favor of the Veteran, and based on the facts found, the Board concludes that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active service in Thailand. 38 C.F.R. § 3.102. Because the Veteran is found to have been exposed to herbicide agents during his military service, and has been diagnosed with ischemic heart disease and diabetes mellitus, type II, service connection for ischemic heart disease and diabetes mellitus, type II, is warranted on a presumptive basis. Accordingly, service connection for ischemic heart disease and diabetes mellitus, type II, is granted. See 38 C.F.R. §§ 3.307, 3.309 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). II. Bilateral Hearing Loss The Veteran alleges that his current bilateral hearing loss was caused or aggravated by in-service noise exposure. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2017). The Veteran underwent an enlistment examination on June 1, 1967, which reflects puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 5 (15) 10 (20) 30 (35) LEFT 5 (20) 5 (15) 15 (25) 30 (40) 30 (35) (Note: The June 1967 audiogram results reflect that they were reported in standards set forth by the American Standards Association (ASA). The above audiogram chart shows ASA figures on the left which are not in parentheses. Since November 1, 1967, standards for audiometric results have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in the charts herein, the ASA standards were converted to ISO-ANSI standards and are represented by the figures in parentheses.) In a report of medical history, completed at that time, the Veteran denied a history of hearing loss. A March 1969 service treatment records reflects that an evaluation was requested for bilateral high frequency hearing loss. Unfortunately, the service treatment records do not contain the results of any such evaluation or a separation examination documenting audiometric testing results. In February 2014, the Veteran underwent a VA audiological examination. The Veteran reported that the onset of his hearing loss occurred in the 1970's while he was working in a factory. On the audiological examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 70 75 70 LEFT 35 55 75 75 65 The puretone average was 68 in each ear. Speech audiometry revealed speech recognition using the Maryland CNC test of 76 percent in the right ear and 78 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. After reviewing the Veteran's claims file, conducting an audiological examination, and interviewing the Veteran, the VA examiner concluded that the Veteran's bilateral hearing loss pre-existed his military service and was not aggravated thereby. The examiner explained that there was no evidence in the service treatment records that the Veteran's hearing loss worsened during his military service. The examiner also noted that the Veteran reported the onset of his hearing loss in the 1970's after his separation from service. The examiner explained that the Institute of Medicine has concluded that it is unlikely that delayed effects of acoustic trauma occur long after the cessation of noise exposure. The audiometric testing conducted during the Veteran's June 1967 entrance examination reflects some degree of bilateral hearing loss, as the results at 4000 Hz in the right ear were 35 dB, and at 2000 Hz, 3000 Hz, and 4000 Hz in the left ear were 25 dB, 40 dB, and 35 dB, respectively. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss). Accordingly, the Board finds that bilateral hearing loss was noted at service entrance, and the presumption of soundness does not apply. See 38 U.S.C. § 1111. The Board will, therefore, consider whether service connection is warranted on the basis of aggravation of a pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004) (concluding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). It is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the pre-existing disability increased in severity during service for the presumption of aggravation to attach. See Wagner, 370 F.3d at 1096; Verdon v. Brown, 8 Vet. App. 529, 538 (1996) (stating that the question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. See Wagner, 370 F.3d at 1096; Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); 38 C.F.R. § 3.306(b). After reviewing the Veteran's claims file, the Board finds that there is no evidence that the Veteran's pre-existing bilateral hearing loss underwent an increase in severity during service. The Veteran's service treatment records contain no additional audiograms to show a change in auditory thresholds during service. Although a March 1969 service treatment record requested evaluation for high frequency bilateral hearing loss, the treatment record does not suggest that the Veteran's hearing loss had worsened in severity since service entrance. In addition, the February 2014 VA examiner concluded that it was less likely than not that the Veteran's bilateral hearing loss worsened in severity during his military service. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (38 U.S.C. § 1153 requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition.); see Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). There is no competent medical evidence of record indicating that the Veteran's bilateral hearing loss was aggravated by active military service. The Board acknowledges the Veteran's testimony during his October 2017 hearing before the Board, when he reported that he first noticed bilateral hearing loss during service. However, during his February 2014 VA examination, the Veteran stated that the onset of hearing loss occurred in the 1970's while he was working in a factory, after service discharge. Because the Veteran provided inconsistent and contradictory statements as to when he first noticed his bilateral hearing loss, the Board does not find his October 2017 testimony reporting the onset of bilateral hearing loss during service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331,1336-37 (Fed. Cir. 2007) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Without some objective evidence demonstrating a worsening of the Veteran's bilateral hearing loss in service, the Board concludes that the evidence does not support a finding of aggravation. Thus, because the Veteran's bilateral hearing loss pre-existed his active military service and was not aggravated therein, the Veteran's claim for entitlement to service connected for bilateral hearing loss must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Wagner, 370 F.3d 1089. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). III. Tinnitus The Veteran contends that service connection is warranted for tinnitus based on exposure to acoustic trauma during service. The Veteran's service treatment records are silent as to any complaints of or treatment for tinnitus during service. Initially, the Board observes that there is evidence of a current diagnosis of tinnitus, as shown in a February 2014 VA examination. Additionally, the Board acknowledges that the Veteran experienced acoustic trauma during military service from exposure to loud vehicles and working near the flight line. However, there is no medical evidence or credible lay evidence relating the Veteran's tinnitus to his service. The only medical evidence of record addressing the etiology of the Veteran's tinnitus is the February 2014 VA opinion, which concluded that it was less likely than not that the Veteran's tinnitus was related to service. The rationale provided by the examiner noted the lack of evidence of tinnitus in the service treatment records. Additionally, the examiner explained that the Veteran reported during his examination that the onset of his tinnitus "occurred years after his discharge from the service." Based on the Veteran's lay statements, the evidence in the claims file, as well as a report by the Institute of Medicine which concluded that the possibility that tinnitus is triggered by other factors increases as the interval between a noise exposure and the onset of tinnitus lengthens, the examiner concluded that it was less likely than not that the Veteran's tinnitus was related to his in-service noise exposure. The Board acknowledges the testimony provided by the Veteran during his October 2017 hearing before the Board, when he stated that he first noticed tinnitus during military service. However, the Veteran provided contradictory statements regarding the onset of his tinnitus during the February 2014 VA examination. Because the Veteran provided inconsistent statements with regard to the onset of his tinnitus, the Board does not find his October 2017 testimony reporting the onset of tinnitus during service to be credible. See Buchanan, 451 F.3d at1336-37; see also Caluza, 7 Vet. App. at 511, aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In the absence of any medical evidence or any credible lay evidence relating the Veteran's tinnitus to service, the preponderance of the evidence is against the claim, and service connection is not warranted. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for ischemic heart disease is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs