Citation Nr: 18144750 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-23 741 DATE: October 25, 2018 ORDER Entitlement to an earlier effective date of August 31, 2010, for the grant of service connection for ischemic heart disease is granted. Entitlement to a separate compensable disability rating for hypertension secondary to service-connected diabetes mellitus is denied. Entitlement to a compensable disability rating for erectile dysfunction secondary to service-connected diabetes mellitus is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to an effective date earlier than February 27, 2015, for the grant of service connection for atrial fibrillation is remanded. Entitlement to an appropriate initial rating for ischemic heart disease for the period from August 31, 2010 to May 9, 2013 is remanded. Entitlement to a rating in excess of 30 percent for ischemic heart disease from August 31, 2010 to February 27, 2015, and a rating in excess of 60 percent thereafter is denied. FINDINGS OF FACT 1. An August 2013 rating decision granted service connection for ischemic heart disease, effective from May 9, 2013, the date of a VA examination showing a diagnosis for coronary artery disease. The Veteran filed a notice of disagreement with the August 2013 rating decision in March 2014. However, the RO did not issue the Veteran a statement of the case or readjudicate the issue. As such, the August 2013 rating decision is not final. 2. The evidence of record shows that the Veteran’s claim was evaluated by VA within a year that ischemic heart disease was added to the presumptive list on August 31, 2010. As such, service connection is warranted from that date. 3. There is no evidence of record showing that the Veteran has diastolic blood pressure predominantly 100 or more, systolic blood pressure predominantly 160 or more or that he has a history of diastolic pressure predominantly over 100 which requires medication for control. 4. The Veteran’s erectile dysfunction does not result in penile deformity. 5. Bilateral sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 6. Tinnitus did not become manifest during service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria are met for an earlier effective date of August 31, 2010, for the grant of service connection for ischemic heart disease. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.104, Diagnostic Code 7101 (2017). 3. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.104, 4.115a, 4.115b, Diagnostic Code 7522 (2017). 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (West 2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to February 1971 with service in the Republic of Vietnam. In June 2018, he testified before the undersigned Veterans Law Judge of the Board during a videoconference hearing. Effective Date Claim As an initial matter, the Board notes that the Veteran’s claim for an effective date earlier than February 27, 2015, for the award of a 60 percent rating for his ischemic heart disease is, in actuality, a claim of entitlement to an effective date earlier than May 9, 2013, for the grant of service connection for the same disability. In this respect, the Board notes that the Veteran filed a notice of disagreement (NOD) in March 2014 to the August 2013 rating decision that granted service connection for ischemic heart disease and assigned the initial effective date of May 9, 2013. However, the RO did not issue the Veteran a statement of the case (SOC), thereby precluding finality of the August 2013 rating decision. See Myers v. Principi, 16 Vet. App. 228 (2002). As such, the Veteran’s claim has been recharacterized as entitlement to an effective date earlier than May 9, 2013, for the grant of service connection for ischemic heart disease. Effective August 31, 2010, ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for veterans exposed to Agent Orange during service. The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.816 (b)(2). However, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran’s Affairs. The regulation, 38 C.F.R. § 3.816, defines Nehmer class members and sets forth effective date rules for Vietnam veterans that currently have a “covered herbicide disease,” or have died from a “covered herbicide disease.” In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. In pertinent part, a “Nehmer class member” is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). According to 38 C.F.R. § 3.816(b)(2), a “covered herbicide disease” includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. As noted above, ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease. Id.; see also Garza v. Shinseki, 480 Fed. Appx. 984, 987 (Fed. Cir. 2012) (specifically associating ischemic heart disease with Nehmer despite the language of 38 C.F.R. § 3.816). The Nehmer regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. 38 C.F.R. § 3.816 (c)(1). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) The claimant’s application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease (August 31, 2010), in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(i), (ii). If the requirements of paragraph (c)(1) or (c)(2) listed above are not met, the effective date of the award shall be determined in accordance with the liberalizing law and general effective date provisions of 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Here, the record reflects that the Veteran served in Vietnam, and he was granted presumptive service connection for ischemic heart disease, among other disabilities, based on exposure to herbicides during such service. As such, he is a Nehmer class member. However, the Veteran does not meet the criteria of subsection (c)(1) or (c)(2) where his claim was not denied between September 25, 1985 and May 3, 1989, nor was his claim pending on May 3, 1989, or received by VA between May 3, 198 and August 31, 2010. Given that the Veteran does not meet the provisions of either 38 C.F.R. § 3.816 (c)(1) or (c)(2) as described above, the Veteran’s effective date will be set in accordance with the provisions of 38 C.F.R. §§ 3.114 or 3.400. Based on 38 C.F.R. § 3.114, the Board finds that the Veteran is entitled to an earlier effective date of August 31, 2010, the date of the effective date of the liberalizing law. Congress wrote that when disability benefits are awarded "pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." In other words, if VA grants a claim by applying a newly enacted law or regulation "within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or issue." 38 C.F.R. § 3.114(a)(1)(2014); see also Brown v. Nicholson, 21 Vet. App. 290, 295 (2007). That is the case here. Specifically, the Veteran’s initial claim for service connection for a heart disorder was received by VA in December 2007 and denied in a June 2008 rating decision because he did not have a diagnosed heart disorder. He did not appeal this decision. As such, it is final. Thereafter, in an August 2011 letter, the RO notified the Veteran that VA was conducting a special review of his file in accordance with Nehmer v. U.S. Department of Veterans Affairs, which provided retroactive benefits to certain Nehmer class members. He was informed that his case was being reviewed based on the addition of ischemic heart disease to the list of diseases presumptively associated with herbicide exposure in Vietnam. See 38 C.F.R. § 3.309 (e). The August 2011 letter further stated that entitlement to potential retroactive benefits applies to all cases wherein VA received a claim, or a claim for benefits was pending, or wherein VA denied benefits, on or after September 25, 1985. The Veteran was informed that his case qualified for the special review based on a possible prior VA benefits claim for ischemic heart disease. In a September 2011 rating decision, the RO again denied service connection for a heart disorder on the basis that the evidence of record failed to demonstrate a diagnosis of ischemic heart disease. The Veteran was scheduled for a VA examination in May 2013. During this examination, the VA examiner provided a diagnosis of coronary artery disease, which is included in the definition of ischemic heart disease. Due to the Veteran’s confirmed service in the Republic of Vietnam, the RO granted service connection for ischemic heart disease. In so granting, the RO assigned an effective date of May 9, 2013, the date entitlement arose (i.e., diagnosis of the disability), and assigned an initial rating of 30 percent. Notably, the Veteran submitted a statement from a private physician dated February 4, 2014, that states the Veteran’s coronary artery disease was present as early as March 2012 due to his having undergone a coronary angiography. In further support of the Veteran’s claim, a VA treatment record shows an initial diagnosis of coronary artery disease on February 24, 2012. Based on the aforementioned procedural history and evidence of record, the Board will award benefits to August 31, 2010, the date of that VA added ischemic heart disease to the presumptive list. See 75 Fed. Reg. 53,202 (August 31, 2010). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Hypertension The Veteran’s hypertension is currently included as part of his 20 percent rating for diabetes mellitus under Diagnostic Code 7913. In May 2013, he filed a claim for a separate compensable rating for this disability. As such, the evidence, which is the relevant temporal focus for this appeal includes the evidence dated from May 2012 to the present. Hypertension is properly evaluated under Diagnostic Code 7101 which provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran was scheduled for a VA examination for heart conditions in May 2013. At that time, the Veteran’s blood pressure was found to be 120/70. It was also noted that he was taking lisinopril. A stress test conducted at the time of this examination was abnormal and showed mild inducible ischemia. However, his heart examination revealed a regular rate and rhythm, with normal peripheral pulses. The examiner did not provide any further discussion or clinical findings regarding the Veteran’s hypertension. The Veteran next underwent a VA examination in February 2014 specifically to address the current severity of his service-connected hypertension. At that time, the VA examiner noted the Veteran required continuous use of medication for his hypertension. Blood pressure readings taken that day were as follows: 149/76, 155/83, 153/82. His heart examination revealed a regular rate and rhythm. Peripheral pulses were 2+. The neck was supple. His echocardiogram (EKG) revealed no evidence of cardiac dilation or hypertrophy, arrhythmia, or ischemia. The examiner provided a diagnosis of hypertension. A chest x-ray showed mild emphysema and cardiomegaly. The Veteran was again examined by VA in May 2015, primarily in connection with his claim for service connection for ischemic heart disease. Blood pressure readings taken at the time were 126/72, 148/73, and 152/79. The physical examination showed a regular rhythm and heart rate. His peripheral pulses were diminished. The EKG showed evidence of cardiac hypertrophy but not cardiac dilation. The stress test conducted during this examination resulted in complaints of dyspnea and fatigue. The Veteran was also scheduled for a VA examination regarding his diabetes mellitus in November 2015, however, that examination did not include any discussion regarding the diagnosed hypertension. A review of the VA and private treatment records show a well-documented blood pressure disability beginning in 2007. There are numerous blood pressure readings during this period, and they consistently show diastolic blood pressure less than 100 and systolic blood pressure less than 160. Based on a review of the competent evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for hypertension at any point during the appeal period beginning in May 2012. In this regard, there is no evidence of record showing that the Veteran has diastolic blood pressure predominantly 100 or more, systolic blood pressure predominantly 160 or more or that he has a history of diastolic pressure predominantly over 100 which requires medication for control. Therefore, a compensable rating for hypertension is not warranted. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board acknowledges the Veteran’s belief that he is entitled to a separate compensable rating for his hypertension. However, he does not present any arguments as to why he believes he should be afforded this benefit. As noted, the objective evidence of record notes blood pressure readings consistently in the range of less than 160 for systolic pressure and less than 100 for diastolic pressure. While the record does indicate the Veteran requires the use of medication for control, there is no history of a diastolic pressure of predominantly 100 or more to warrant a compensable evaluation. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, the claim for entitlement to a separate compensable rating for the entire appeal period dating from May 2012 for hypertension is denied. As the preponderance of the evidence is against the claim, there is no doubt to resolve. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102. 2. Erectile dysfunction The Veteran’s erectile dysfunction is currently included as part of his 20 percent rating for diabetes mellitus under Diagnostic Code 7913. In May 2013, he filed a claim for a separate compensable rating for this disability. As such, the evidence, which is the relevant temporal focus for this appeal includes the evidence dated from May 2012 to the present. As an initial matter, the Board notes that the Veteran’s Form 9 includes a statement that he believes he is entitled to special monthly compensation (SMC) for this disability. However, the Veteran is already in receipt of SMC based on loss of use of a creative organ as a result of his erectile dysfunction associated with the service-connected diabetes. See June 2008 Rating Decision. SMC was granted effective December 6, 2007. Erectile dysfunction is properly evaluated under Diagnostic Code 7522. Diagnostic Code 7522 provides a 20 percent rating for a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. A footnote to this diagnostic code indicates that claims for penis deformities should be reviewed for entitlement to SMC. See 38 U.S.C. §§ 1114 (k) (2012); 38 C.F.R. § 3.350 (k) (2017). SMC is payable for anatomical loss or loss of use of a creative organ. Id. Here, a compensable rating for erectile dysfunction is not warranted. Although the Veteran has loss of erectile power, the medical evidence does not reflect a penile deformity. The February 2014 VA examination report indicates that a physical examination of the Veteran’s penis was normal. Thereafter, during the November 2015 VA examination, the Veteran declined a physical examination and reported normal anatomy with no penile deformity or abnormality. The available VA and private treatment records do not include any objective evidence of a penile deformity. The evidence indicates that the Veteran does have loss of erectile power; however, the evidence of record does not reveal any deformity of the Veteran’s penis. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). That is, the requirement under Diagnostic Code 7522 of deformity of the penis “with” loss of erectile power clearly means that both factors are required. In this regard, the Veteran has not reported, and the evidence does not document, any penile deformity. As noted above, the February 2014 VA examiner noted a normal penis on examination, and the November 2016 VA examiner stated that the Veteran’s penis was not examined per his request; however, the Veteran reported that he had normal anatomy with no penile deformity or abnormality. Accordingly, the lay and medical evidence does not warrant a compensable evaluation for erectile dysfunction. Moreover, other diagnostic codes for the penis or testes that provide for a rating greater than zero percent are not more appropriate, as the facts of the case do not support their application. See 38 C.F.R. § 4.115b, Diagnostic Code 7520 (removal of half or more of the penis); Diagnostic Code 7521 (removal of the penis glans); Diagnostic Code 7523 (atrophy of the testes); or Diagnostic Code 7524 (removal of the testes). Indeed, Diagnostic Code 7522 specifically governs ratings for erectile dysfunction, and the Veteran has not been shown to have removal of the penis glans, atrophy of the testes, or removal of the testes. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Accordingly, the claim for entitlement to an initial compensable rating for the entire appeal period dating from May 2012 for erectile dysfunction is denied. As the preponderance of the evidence is against the claim, there is no doubt to resolve. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102. Service Connection 3. Bilateral hearing loss and tinnitus Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. Regarding the claim for tinnitus, it is defined as “a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (DORLAND’S) 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). As an initial matter, the evidence establishes the Veteran has current diagnoses of bilateral sensorineural hearing loss and tinnitus, as indicated in his March 2014 VA audiological examination. Therefore, the merits of this claim turn on whether the currently diagnosed hearing loss and tinnitus are attributable to his military service pursuant to any theory of entitlement. As to establishing that his diagnosed hearing loss and tinnitus are the result of his military service, the Veteran sets forth the argument that these disabilities are the result of military noise exposure during his active duty and, specifically, as a result of his time in Vietnam. The Board notes that a combat presumption applies to injuries occurred as a result of being engaged in combat while in-service. See 38 U.S.C. § 1154 (b) (West 2012); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The term “engaged in combat,” requires that the Veteran had personally participated in the events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Here, the Veteran’s DD 214 does show he is an overseas returnee, with service in the Republic of Vietnam. However, his military occupational specialty (MOS) notes he was involved in food service. As such, there is insufficient evidence of record to show the Veteran was engaged in combat. Additionally, the Veteran’s service treatment records are silent for any diagnoses of, complaints of, or treatment for hearing loss or tinnitus. Specifically regarding is claim for hearing loss, the Board notes that the March 2014 VA examiner indicated the Veteran’s July 1968 induction examination showed hearing loss in the left ear at the 500 Hertz level and, therefore, hearing loss in the left ear preexisted his military service. While there is evidence of a mild hearing loss in the Veteran’s left ear preexisting service, the pure tone threshold of 30 dB at 500 Hz does not rise to a recognizable degree for VA purposes under 38 C.F.R. § 3.385; therefore, left ear hearing loss will not be considered to have preexisted service, so will be adjudicated as one for direct service connection under 38 C.F.R. § 3.303(a),(d). See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that where a veteran’s hearing loss did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111 (2012)). Following his separation from service in 1971, the first treatment records noting complaints of hearing loss or tinnitus are not until 2014, 50 years later, when the Veteran filed his claim for service connection for these disorders. Thus, based on the record, there is no indication that the Veteran had hearing loss during service or within a year of his separation. Given the extensive amount of time after service before the Veteran presented with hearing and tinnitus complaints is significant and the Board finds that it weighs against the Veteran’s claim to establish a claim based on a presumption. See Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). Furthermore, even though the Board acknowledges the Veteran’s report that his current hearing loss relates to his military service, the Board finds that the Veteran is not competent to medically attribute his bilateral sensorineural hearing loss to his in-service acoustic trauma; such an etiology determination requires medical expertise, which the record does not support. See 38 C.F.R. § 3.159 (a)(1) versus (a)(2). Moreover, chronicity and continuity of the bilateral hearing loss since service is not established, especially where the Veteran has not submitted any evidence to demonstrate that his symptoms have been continuous since service. In sum, based on the record, the Veteran’s bilateral hearing loss did not manifest during or within the year after his separation from service, and the evidence of record does not establish that he has had continuous difficulty hearing since he separated from service. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. The failure to establish a presumptive basis of service connection, with regard to the Veteran’s disability, does not preclude the Veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113 (b). Instead, the Veteran may establish direct service connection to the current disability. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993), which held that the Veteran may submit evidence that the disability is causally related to service. In this respect, while the evidence of record notes complaints of hearing loss and tinnitus and even provides diagnoses of these disorders, at no point do the treating physicians provide an etiological opinion attributing either hearing loss or tinnitus to the Veteran’s military service. In March 2014, the VA examiner noted the Verena’s report of firing weapons without hearing protection but ultimately concluded that hearing loss is less likely than not due to the Veteran’s military service due to his time in service as a cook. Further, concerning the etiology of the Veteran’s diagnosed tinnitus, the VA examiner stated that the tinnitus is as least as likely as not a symptom of the Veteran’s hearing loss, as tinnitus is known to be a symptom of hearing loss. Consequently, when considering all the above, the VA examiner concluded that the Veteran’s hearing loss and claimed tinnitus are not related to acoustic trauma during service. Based on the foregoing, the Board concludes that the preponderance of the evidence weighs against the service connection claims. The March 2014 VA examination found the Veteran’s hearing loss and tinnitus are not related to service. This examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran’s pertinent medical and lay history. The examiner provided a rationale regarding the Veteran’s current conditions and failed to find a relationship between the Veteran’s active duty service and the results of the examination. There are no conflicting opinions. There is no competent medical evidence of record reflecting that the Veteran demonstrated bilateral hearing loss to a compensable degree within one year of discharge from active duty, and the VA examiner’s opinion also weighs against this finding as there is no indication the Veteran sought treatment for hearing loss or tinnitus until 2014, approximately 50 years after his separation from service. Otherwise, there is no medical evidence of record indicating that the Veteran’s bilateral hearing loss and tinnitus were caused or aggravated by his active duty service. Accordingly, entitlement to direct service connection under 38 C.F.R. § 3.304 for both conditions or to presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.309(a) is not shown. The Veteran has asserted his personal belief that he has hearing loss and tinnitus due to noise exposure in service. The Veteran is competent to report noise exposure in service, and he is competent to report difficulty hearing since, but he is not competent as a layperson to opine regarding the etiology of hearing disability that demonstrably became manifest many years after service. Kahana, 24 Vet. App. 428. In sum, the Board has found the Veteran does not have bilateral hearing loss or tinnitus that is incurred in, due to or aggravated by service. Accordingly, the criteria for service connection are not met and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Earlier effective date for the grant of service connection for atrial fibrillation The Veteran is seeking an effective date earlier than February 27, 2015 for the grant of service connection for atrial fibrillation. In the present matter, the Board notes that the May 2015 VA examiner, who determined the Veteran’s atrial fibrillation is attributable to the service-connected ischemic heart disease, noted the date of onset of atrial fibrillation to be 2013. However, a specific date was not provided by the VA examiner and the medical treatment records only show a date of March 24, 2014. As such, the Board finds that an addendum opinion is required in order to afford the Veteran ever possible opportunity to substantiate his claim of entitlement to an earlier effective date. 2. Initial rating for ischemic heart disease from August 31, 2010 The Board has granted an earlier effective date for service-connected ischemic heart disease, and as such is remanding the question of what initial rating is warranted for the period from August 31, 2010 to May 9, 2013 for the AOJ to adjudicate in the first instance. The question of the appropriate initial disability rating for that disability must be determined by the AOJ in the first instance. In light of the grant of an earlier effective date of August 31, 2010, for the award of service connection for this disability, the Board will not discuss the initial rating period on appeal from May 9, 2013, until the RO has addressed the earlier period. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA or private treatment records pertaining to the Veteran’s atrial fibrillation for the period from September 2017 to the present. 2. After the aforementioned has been accomplished, the RO should provide the claims file to the May 2015 VA examiner for an addendum opinion, if available. If the May 2015 VA examiner is not available, the RO should provide the file to an equally qualified medical professional for comment. Upon reviewing the file, the examiner should state the exact date of onset/ diagnosis of the Veteran’s atrial fibrillation, either a specific date in 2013 or whether it is March 24, 2014. Please note whether the date is indicated on a private or VA treatment record, or if it is due to the Veteran’s own statement. 3. Asses the evidence of record for the initial period regarding the ischemic heart disease from August 31, 2010 to May 9, 2013, as well as thereafter and assign an initial rating. Notify the Veteran of the determination as to his initial rating for ischemic heart disease for this period. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel