Citation Nr: 1804798 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-22 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a heart disability, to include as secondary to herbicide exposure. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for bilateral otitis media and otitis externa. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for degenerative joint disorder of the left knee. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969 and a period of pertinent inactive duty for training (INACDUTRA) in May 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a February 2017 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The issues of entitlement to service connection for tinnitus, bilateral hearing loss, and degenerative joint disorder of the left knee 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 does not have a diagnosis of ischemic heart disease. 2. The preponderance of the evidence of record is against a finding that the Veteran's mitral valve prolapse was caused by, or was otherwise etiologically related to, his active service, to include presumed herbicide exposure. 3. During the February 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal concerning the issues of his entitlement to a left shoulder disability and bilateral otitis media and otitis externa. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability, to include as related to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for withdrawal of the Veteran's appeal concerning the issue of his entitlement to a left shoulder disability are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the Veteran's appeal concerning the issue of his entitlement to bilateral otitis media and otitis externa are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has not been provided with a VA examination to assess the current nature and etiology of his claimed heart disability. However, VA need not conduct examinations with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case. While the Veteran has been given a diagnosis of mitral valve prolapse, there is no evidence establishing an in-service event or injury, or any indication or assertion that the diagnosis is otherwise related to service. Further, the Veteran does not have a current diagnosis of ischemic heart disease, nor has he ever been given a diagnosis of ischemic heart disease. Thus, remand for a VA examination is not necessary. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 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 duty to assist argument). II. Service Connection for a Heart Disability Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). First, the Veteran has asserted that he is entitled to service connection for ischemic heart disease. However, the weight of the medical evidence fails to show that the Veteran currently has or has ever had a diagnosis of ischemic heart disease. In addition, the during the February 2017 hearing, the Veteran testified that he did not have a diagnosis of ischemic heart disease. Therefore, the Board will not address the Veteran's claim for a heart disability as a claim for ischemic heart disease. The Veteran has, however, been given a diagnosis of mitral valve prolapse, and thus the first Shedden element is met. See, e.g., private treatment records dated in October and November 1983. However, turning to the second and third Shedden elements, there is no evidence of an in-service incurrence or aggravation of mitral valve prolapse during the Veteran's active duty service from October 1966 to October 1969, nor is there any evidence that the condition is etiologically related to his active duty service. During an August 1969 separation medical examination, the Veteran's heart was evaluated as clinically normal. Otherwise, the Veteran's active duty service treatment records are silent for complaints of or treatment for any heart condition. An October 1983 private treatment record shows that after a cardiac stress test, Dr. J.G. gave the Veteran a diagnosis of palpitations following exercise, plus positive cardiac risk factors. The examiner specifically noted that there was no indication of ischemic heart disease. A later echocardiogram conducted in November 1983 revealed mitral valve prolapse, but was otherwise normal. The examiner further reported that the Veteran did not need to be limited in physical activity and that his condition was benign. Finally, the examiner opined that the Veteran did not need any specific treatment for the condition. Service treatment records include a December 1983 report of medical examination, conducted on the Veteran's enlistment into the Army Reserves, which notes that the Veteran had mitral valve prolapse, but evaluated his heart as clinically normal and noted he had no regurgitation and no arrhythmia at the time. However, the Veteran was first diagnosed with the condition in November 1983, more than a decade after he left active duty service in October 1969 and prior to the December 1983 enlistment examination for the Army Reserves. The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so. 38 U.S.C.A. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). Finally, the Veteran has asserted that he is entitled to presumptive service connection due to exposure to herbicide agents either in the Republic of Vietnam or while stationed at Air Force Bases at Sattahip and Korat, Thailand. See Veteran statements dated in May 2011 and May 2012. If a veteran was exposed to an herbicide agent during service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or if it is established that a veteran was directly exposed to perimeter of one of certain enumerated Royal Thai Air Force Bases (RTAFBs) in Thailand, certain enumerated diseases shall be presumptively service-connected, even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii). However, the VA Secretary 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. See Notice: Diseases Not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 59232 (Nov. 2, 1999). Therefore, because the Veteran has not been diagnosed with ischemic heart disease, and mitral valve prolapse is not listed as a disease for which presumptive service connection is possible, service connection is not warranted on a presumptive basis. See 38 C.F.R. § 3.309(e). In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for the claimed heart disability and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. III. Withdrawal of Left Shoulder Disability and Bilateral Otitis Media and Otitis Externa Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the February 2017 hearing the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a left shoulder disability and bilateral otitis media and otitis externa. Hence there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those issues and they are dismissed. ORDER Entitlement to service connection for a heart disability is denied. The Veteran's appeal concerning entitlement to service connection for a left shoulder disability is dismissed. The Veteran's appeal concerning entitlement to service connection for bilateral otitis media and otitis externa is dismissed. REMAND Entitlement to Service Connection for Bilateral Tinnitus and Hearing Loss The Veteran underwent a private audiology examination in May 2011. The examiner diagnosed mild to moderately severe sensorineural hearing loss and associated subjective tinnitus, but reported that the Veteran's service treatment records showed that he had normal hearing bilaterally while in service and hearing loss was not reported until decades after service and, thus, the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of noise exposure in service. The Veteran was afforded a VA hearing examination in May 2011. The examiner found that the Veteran had hearing loss but did not provide the results of any audiometric testing that may have been conducted. The VA examiner also reported that the Veteran's service treatment records showed normal hearing bilaterally and that the Veteran had not complained of hearing loss or tinnitus until many years after service and opined that the Veteran's hearing loss and tinnitus were less likely than not related to service. Neither examiner, however, addressed the documented complaints and reports of hearing loss contained in the Veteran's service treatment records. See, e.g., Service treatment records dated in August and September 1969. Thus the Board finds that the Veteran must again be afforded a VA examination for his claimed bilateral hearing loss and tinnitus. Entitlement to service connection for a left knee disability The Veteran has consistently asserted that a left knee injury sustained outside of service was aggravated beyond its normal progression by a physical fitness test conducted during a period of training. The Veteran was afforded a VA examination for his claimed left knee condition in July 2011. However, while the examiner noted that the Veteran had injured his knee during a hurdle demonstration one year prior to his in-service injury, the examiner did not provide an opinion as to whether or not the Veteran's service aggravated his left knee injury beyond the ordinary progression. Thus the Board finds that it is necessary to remand these claims for an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After the development above has been completed, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any bilateral hearing loss or tinnitus. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the examination reports. After reviewing the claims file and examining the Veteran, the examiner should address the following inquiries: a) Whether it is at least as likely as not (50 percent or greater) that any current hearing loss in either ear is related to active service, including in-service noise exposure. The examiner should note the August 1969 separation report of medical examination that noted the Veteran had conductive hearing loss and gross and high frequency hearing loss in his left ear. b) Whether it is at least as likely as not (50 percent or greater) that any current tinnitus in either ear is related to active service, including in-service noise exposure. A complete rationale with regard to all opinions is requested. If the examiner cannot opine as to the foregoing without resorting to speculation, he or she should so state and explain why. 3. After the development in 1 above has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed left knee disability. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the examination reports. After reviewing the claims file and examining the Veteran, the appropriate examiner should address the following inquiries: (a) Identify all current diagnoses associated with the Veteran's left knee that have been present at any time during the appeal period. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition is caused by or is etiologically related to service, including a two-mile run that took place during a period of INACDUTRA in May 1992. (c) Provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that any diagnosed left knee disability was aggravated by his service, including a two-mile run that took place during a period of INACDUTRA in May 1992. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If the examiner finds that the Veteran's left knee was aggravated by his service, the examiner must identify the baseline level of the disability that existed before aggravation. The examiner should specifically consider the Veteran's assertion that a run administered during a May 1992 physical fitness examination aggravated a left knee injury he had incurred one year prior outside of service beyond its natural progression and resulted in his current claimed disability. 4. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs