Citation Nr: 1808845 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-00 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart disorder, characterized as ischemic heart disease, to include as secondary to toxic herbicide exposure. 2. Entitlement to service connection for a kidney disorder, characterized as cystitis, to include as secondary to service-connected diabetes. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2012 and November 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran does not have a diagnosis of coronary heart disease. 2. The Veteran's kidney disorder was not caused by or related to active duty service, to include as secondary to service-connected diabetes. 3. The Veteran's bilateral hearing loss was not caused by or related to active duty service. 4. The Veteran's tinnitus was not caused by or related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disorder, characterized as ischemic heart disease, to include as secondary to toxic herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a kidney disorder, characterized as cystitis, to include as secondary to service-connected diabetes, have not been met. 38 U.S.C §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.385 (2017). 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that his bilateral hearing loss, tinnitus, heart, and kidney disorders are related to active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including certain heart diseases, sensorineural hearing loss and tinnitus, 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection may be presumed for certain diseases, including ischemic heart disease, if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. § 3.307(a)(6), 3.309(e). However, the Veteran's prostate and tremor disorders are not subject to this presumption. Id. A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Finally, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the Board determines that service connection is not warranted for any of the disorders on appeal. As a preliminary matter, while the Board concedes toxic herbicide exposure, the Board finds that after a thorough reading of the evidence of record, the evidence does not reflect a current diagnosis related to a heart disorder, including ischemic heart disease, at any time during the period on appeal. Specifically, the June 2013 VA examiner did not find any evidence of a heart disorder, to include ischemic heart disease, congestive heart failure, cardiac hypertrophy, or dilation. Moreover, the Veteran's VA and private treatment records, including from July 2012, February 2014, and March 2014, do not reflect a heart disability. As such, the preponderance of the evidence is against a finding that the Veteran has a heart diagnosis at any point during the time on appeal. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In arriving at this conclusion, the Board acknowledges that there is some evidence that the Veteran had a past history of a heart murmur, with similar sporadic findings during the course of appeal. Nevertheless, a heart murmur is a finding or symptom, and not a disability in and of itself for which VA compensation benefits are payable. The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); See also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Next, the Veteran's service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to a kidney disorder. Specifically, the Veteran's February 1971 separation examination is silent for signs, symptoms, or a diagnosis of a kidney disorder. Moreover, the Veteran stated that he was in "good" health with no kidney complaints. With respect to hearing loss and tinnitus, while the Veteran's service treatment records report that he was exposed to significant noise in service, the Veteran's separation examination and report of medical history do not reveal tinnitus or any hearing loss for VA purposes. The post-service medical evidence indicates that the first evidence of a kidney disorder was in 2012 - after the Veteran was diagnosed with cystitis. With regard to hearing loss and tinnitus, the medical evidence reflects that the Veteran only first experienced symptoms of bilateral hearing loss and tinnitus in approximately 2008 and 2010, respectively- more than 37 years after service. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for hearing loss and tinnitus is not warranted because these disorders did not manifested to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307(a). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of a kidney disorder, hearing loss, and tinnitus since service. In this regard, while the Veteran is not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran's claims. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Here, the Veteran's history of hearing loss and tinnitus is inconsistent with his February 1971 separation examination, March 2012 VA examination, and May 2013 treatment evaluation. Lastly, the Board notes that the Veteran filed a claim for VA benefits over 30 years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims, weighs heavily against his credibility. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's disorders to active duty, despite his contentions to the contrary. In this case, the Board places significant value on the opinions of the VA examiner who evaluated the Veteran's kidney disorder in June 2013. Specifically, the examiner opined that the Veteran's cystitis was not related to service, to include as secondary to his diabetes, because diabetes does not cause cystitis. Further, the records do not report any symptoms of a kidney disorder. Moreover, the examiner indicated that the cystitis appears to be more likely related to the Veteran's non-service connected bladder cancer. With respect to bilateral hearing loss and tinnitus, the March 2012 VA examiner performed a detailed review of the Veteran's service and medical treatment records and a thorough physical examination. Specifically, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were not related to service because the Veteran's hearing was normal at separation and he did not have any complaints until over 35 years later. Further, the examiner reported that the Veteran experienced significant post-service noise exposure as construction worker in which the Veteran denied using ear protection. Finally, given that the Veteran did not have a significant shift in hearing during service or shortly thereafter, his current hearing loss is less likely than not related to any in-service noise exposure. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his kidney disorder, hearing loss, and tinnitus, to active service. The Board has also considered the statements made by the Veteran relating his disorders to active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of a heart disability, kidney disorder, and hearing loss. See Jandreau, 492 F.3d at 1377, n.4. Specifically, while the Veteran can provide competent testimony regarding symptoms of tinnitus, a heart disability, kidney disorder, and hearing loss are not disorders that can be diagnosed by their unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims, and there is no doubt to be otherwise resolved. As such, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a cardiac disorder, characterized as ischemic heart disease, to include as secondary to toxic herbicide exposure, is denied. Service connection for a kidney disorder, characterized as cystitis, to include as secondary to service-connected diabetes, is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs