Citation Nr: 18160067 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 15-16 776 DATE: December 21, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for heart disability is denied. FINDINGS OF FACT 1. The Veteran does not have hearing loss disability. 2. Tinnitus was not manifest during service or within one year of separation and is not otherwise related to service. 3. The Veteran is not presumed to have been exposed to herbicide while serving in Thailand. 4. Heart diseases was not manifest during service or within one year of separation and is not otherwise related to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred or aggravated during service, nor may a sensorineural hearing loss (organic disease of the nervous system) be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred or aggravated during service nor may tinnitus (organic disease of the nervous system) be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Heart disease was not incurred or aggravated during service nor may ischemic heart disease be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) from July 2012 and April 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. A transcript of the hearing is of record. 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 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). 1. Bilateral Hearing Loss Disability Under 38 C.F.R. § 3.385 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, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In a March 2018 VA examination, the Veteran was found to have the following auditory thresholds: Hertz (Hz) 500 1000 2000 3000 4000 Right Ear 15 0 25 25 30 Left Ear 15 20 20 20 35 The Veteran does not have any auditory threshold of 40 decibels or greater and does not have a threshold of 26 decibels or greater in at least three of the listed frequencies. During the same examination, the Veteran received a Maryland CNC speech recognition score of 96 percent in each ear. Clearly, the Veteran is competent to report that he has noticed a decrease in his ability to hear. However, his lay evidence is inadequate to establish the presence of hearing loss disability. His lay evidence pales into insignificance when compared with the objective evidence. Because the Veteran’s hearing is not considered impaired by VA standards, the claim is denied. 38 C.F.R. § 3.385. 2. Tinnitus The Veteran asserts that he has been suffering from tinnitus since several years after his discharge. He reports that he has symptoms varying from ringing to knocking in his ears. The Veteran is both competent to report symptoms of tinnitus, and so the Board gives them due consideration. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At discharge from service and during multiple subsequent medical examinations, the Veteran reported having no hearing problems. In his May 1970 separation examination, the Veteran reported normal hearing. Although he reported a history of ear, nose or throat issues, such related to anatomy other than the ear. An August 2004 examination found no tinnitus and reported no history of hearing problems. A May 2011 examination also found no hearing changes. The first report of any hearing problems or tinnitus appears in a May 2012 examination. Here, there is no credible proof of tinnitus during service or within one year of separation. Clearly, tinnitus was not noted during service. In addition, he did not have characteristic manifestations sufficient to identify the disease process during that time frame. Any assertion of an in-service onset and continuity is inconsistent with the record, to include the 2004 report. The Board gives more weight to the multiple contemporaneous statements affirming no tinnitus and to the opinion of the VA examiner, than to the current after-the-fact law assertions of tinnitus occurring over the course of previous decades. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Heart Disease VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Exposure to Agent Orange may also be established on a factual basis for veterans whose duties placed them on or near the perimeters of Thailand military bases. The list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). 38 C.F.R. § 3.309(e). Certain chronic diseases, including ischemic heart disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran asserts that while serving at U-Tapao Royal Thai Air Force Base, that he was exposed to Agent Orange (or other herbicide) due to the proximity of the flight line to the perimeter of the base, his crossing the perimeter multiple times as he entered and left the base, and because his clothes were washed in local streams. The VA may concede exposure to herbicides at Air Bases in Thailand if service along the perimeter fence can be confirmed based on occupational specialty, or some other factual documentation. The Veteran’s service personnel records show that he was an aircraft mechanic. This occupational specialty has not been recognized as requiring service along the perimeter fence and having reviewed maps of U-Tapao and the surrounding area, the Board finds that the flight line was not in proximity to the base perimeter. To the extent that he reports that he left the base or had clothes washed in a stream, such statements do not establish herbicides were used in that area, that the road was contaminated or that the stream was contaminated. In this case, he has not established a credible foundation for establishing actual exposure. Although it is not presumed to be due to herbicides in this case, service connection may still be granted on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, service treatment records are negative for complaint, treatment, or diagnosis of a cardiovascular disorder while in service. In fact, at separation, the heart, lungs, chest and vascular system were normal. Blood pressure was 132/72. In addition, there is no evidence of heart disease within one year of separation. Here, heart disease was not noted during service or within one year of separation. In addition, he did not have characteristic manifestations sufficient to identify the disease entity during that time frame. The Veteran has submitted evidence in the form of articles that offer opinions regarding the usage of herbicide at RTAF bases in Thailand. The Board has considered this additional evidence, but finds that it does not constitute factual documentation that the Veteran was himself exposed to herbicide. The Veteran has not submitted evidence or other medical opinion with sufficient competence, credibility, and weight to allow the Board to find service connection. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).   As the Veteran’s service record does not show that his duties placed him, on or near the perimeters of the base at which he was stationed, and that he has not otherwise established a factual foundation of exposure, service connection based on herbicide exposure cannot be granted. The preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel