Citation Nr: 1808874 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 15-45 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure. 2. Entitlement to service connection for a cardiovascular disorder, to include ischemic heart disease (IHD) as due to herbicide exposure. 3. Entitlement to service connection for diabetes mellitus, type 2 (DM), to include as due to herbicide exposure. 4. Entitlement to service connection for an acquired psychiatric disorder. 5. Entitlement to an initial compensable rating for right ear hearing loss. 6. Entitlement to an initial compensable rating for left ear hearing loss. 7. Entitlement to an effective date prior to August 5, 2013, for the grant of service connection for left ear hearing loss. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from September 1969 to November 1971. For his service, he was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal of February 2014 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. §7107(a)(2) (2012). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. COPD was not shown in service and is not etiologically related to active service and is not a disability presumed to be related to exposure to herbicides. 2. A diagnosis of DM has not been shown. 3. The Veteran served in combat in Vietnam; his current psychiatric disorder has been attributed to active duty. 4. A cardiovascular disorder, to include IHD and coronary artery disease (CAD), have not been shown. 5. The Veteran's hearing impairment is no worse than Level I in the right ear and Level I in the left ear. 6. The initial claim of entitlement to service connection for left ear hearing loss was received by VA on August 5, 2013. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated by active service and is not associated to herbicide exposure. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. DM was not incurred in or aggravated by active service; a current diagnosis of DM has not been shown. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. An acquired psychiatric disorder was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. A cardiovascular disorder, to include IHD and CAD, was not incurred in or aggravated by active service; a current diagnosis of a cardiovascular disorder has not been shown. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for an initial compensable rating for right ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code (DC) 6100 (2017). 6. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, DC 6100 (2017). 7. The criteria for establishing an effective date prior to August 5, 2013, for the grant of service connection for left ear hearing loss has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). Further, service connection for certain specifically listed diseases, including IHD and diabetes, may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, 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 service. 38 C.F.R. § 3.307(a)(6). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. COPD As the Veteran had service in Vietnam during the relevant time period, exposure to Agent Orange is presumed. To the extent that the claim is based on Agent Orange exposure, while respiratory cancer is a presumptive disease associated with herbicide exposure, COPD is not one of the presumptive diseases. 38 C.F.R. § 3.309(e). Therefore, the appeal based on presumptive Agent Orange exposure must be denied. Similarly, COPD is not one of the enumerated diseases entitled to a one-year presumption for service-connection. Further, he has not argued and the evidence does not show that COPD is secondary to an already-service connected disability. Therefore, the appeal based on a presumptive or secondary theory of entitlement is denied. Turning now to service connection on a direct basis, the service treatment records (STRs) are silent for complaints of, or treatment for COPD, or symptoms reasonably attributed to a respiratory disorder. In a September 1971 separation examination, the Veteran's lungs and chest were clinically normal and there was no other indication from the examination report that he had symptoms of a chronic respiratory disorder at the time of his separation from active service. Post-service medical evidence shows that the Veteran receives treatment through VA for various disabilities, to include COPD. Treatment notes confirm that he has been diagnosed with COPD and also indicate repeatedly, in connection with the management of the disorder, that he has a long history of tobacco abuse. There is no indication from the treatment notes that COPD was ever attributed to active service, to include his exposure to herbicides. Furthermore, the evidence does not include a supporting opinion that COPD is associated with active service, to include his conceded exposure to herbicides, or to another service connected disability, and he has not shown that he is competent to provide a medical opinion of an etiological nexus between in-service herbicide exposure and COPD. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnoses). The only evidence suggesting a relationship between the Veteran's COPD and active service is his general unsubstantiated contention, stated in a conclusory fashion when he filed the original claim for compensation. However, the etiology of COPD, especially as claimed as related to in-service herbicide exposure, is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran that requires knowledge of the complex etiology of a relationship to herbicide and chemical exposure. For the reasons discussed above, the weight of the evidence does not show that COPD was incurred in or otherwise caused by active service, and may not presumed to have been incurred therein, including as due to in-service herbicide exposure. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Diabetes Mellitus In addition to the laws and regulations above, for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, the Veteran served in Vietnam during the relevant time period; therefore, it is presumed that he was exposed to herbicides, including Agent Orange. The threshold question is whether he has a diagnosis of diabetes mellitus. The STRs are silent for any complaint of, treatment for, or clinical diagnosis of DM. Further, there is no indication from the STRs that the Veteran exhibited symptoms that could reasonably be attributed to a diagnosis of DM. The September 1971 separation examination report is silent for reports of DM or symptoms consistent with such diagnosis. At that time, the endocrine system was clinically normal, urinalysis was negative, and sugar and albumin were specifically noted to be absent in his urine. Therefore, DM was not noted in the STRs. Post-service medical evidence shows that the Veteran has received treatment for various disabilities; however, the evidence does not show that he has ever been diagnosed with DM. Laboratory results on one occasion in September 2012 noted an elevated glucose; however, there is no evidence that this resulted in a diagnosis of diabetes, including the recommendation for any medication or other treatment. Therefore, a current diagnosis of DM has not been shown. As noted, the STRs and subsequent treatment records are silent for symptoms or a diagnosis of, or treatment for diabetes. The Veteran has not provided a competent medical opinion contradicting this evidence nor has he identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. Therefore, the medical evidence is sufficient to decide the claim and a VA examination or medical opinion is unnecessary. The Board has considered the Veteran's lay statements that he has DM which is related to service. However, he is not shown to possess any medical training or expertise in diagnosing metabolic or endocrine disorders or providing an opinion as to the etiology thereof. Therefore, his opinion in this regard has little probative value. In sum, although it is presumed that the Veteran was exposed to herbicides during active service, there is no evidence to indicate that he has been diagnosed with DM. Accordingly, the preponderance of the evidence is against the claim and the appeal is denied. An Acquired Psychiatric Disorder STRs are negative for complaints of, treatment for, or a diagnosis of a psychiatric disorder. Post-service treatment records include a November 2015 private mental health opinion from Dr. H H-G, as well as VA treatment records indicating that the Veteran currently receives medication for depressive symptoms. In the private opinion, the medical provider noted that she reviewed the Veteran's file and conducted an interview with the Veteran. She documented his current chronic sleep impairment, as well as his reported disturbances in mood and motivation and history, among other symptoms, of persistent social isolation. She also reviewed the statements in support from C.A. and R.J., the Veteran's brother and sister, who reported the onset of depressive symptoms to around the time of the Veteran's discharge from active duty. On the basis of the evidence, she opined that it was more likely than not that the Veteran's depressive disorder more likely than not began in service and still presently exists. The Board places significant probative value on the private assessment. Specifically, the clinician reviewed the file, interviewed the Veteran, and conducted a mental status examination. There is no indication that the she was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Moreover, the clinician has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. the Board finds the clinician's opinion to be of great probative value. Given that a medical professional has associated the Veteran's current psychiatric symptomatology to service, the appeal is granted. CV Disease In addition to the laws and regulations above, for the purpose of presumed service connection based on herbicide exposure, the term IHD includes, but is 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). As noted above, the VA has conceded that the Veteran was exposed to herbicides, to include Agent Orange while serving in Vietnam. The STRs are silent for complaints of, or treatment for, symptoms which could be associated with a diagnosis of a cardiovascular disorder, to include CAD and/or IHD, nor is there such evidence within one year of service discharge. Indeed, at the September 1971 separation examination, his heart was noted to be clinically normal. Post-service medical evidence is negative for a diagnosis of a cardiovascular disorder. In a December 2013 VA examination, the examiner noted that the Veteran's medical history was silent for a diagnosis of IHD. The examiner also documented that the Veteran did not have a history of myocardial infarction (MI), coronary bypass surgery; congestive heart failure (CHF), heart transplant or surgeries to insert a pacemaker or other implantable defibrillator. An October 2012 echocardiogram revealed no evidence of cardiac hypertrophy or dilatation. The examiner noted that the Veteran had some evidence of aortic atherosclerosis, which is not indicative of IHD, and therefore does not support a diagnosis of IHD. A review of the Veteran's treatment records confirm that he has been diagnosed with and received treatment for severe aortic atherosclerosis, including medication and surgical management. However, there is no indication that he has ever been diagnosed with IHD or any other cardiovascular disorder. As noted above, for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. In the absence of proof of a present disability, there can be no valid claim. Here, there is no evidence of record showing that the Veteran has IHD or a cardiovascular disorder of any kind. While there is a current finding in the record of aortic atherosclerosis, that disorder is not one of the enumerated disorders identified as related to herbicide exposure. Further, the Veteran is not shown to possess any medical training or expertise in diagnosing cardiac disorders or providing an opinion as to the etiology thereof. Therefore, his opinion in this regard has little probative value. In sum, there is no competent evidence of record indicating that the Veteran has ever received a diagnosis of IHD, or a cardiovascular disorder that is related to service. Based on the above, the preponderance of the evidence is against the claim and the appeal is denied. Increased Rating for Hearing Loss Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Hearing tests will be conducted without hearing aids, and the results of the above-described testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). As the analysis is similar, the Board will consider right and left ear hearing loss together. The Veteran was afforded a VA audiology evaluation in December 2013 in connection with his original claim for service connection for right ear hearing loss. Service connection for right ear hearing loss was granted in February 2014 and a non-compensable rating was assigned. Audiometric testing results at that time of the December 2013 examination were as follows: Hertz 1000 2000 3000 4000 AVG. Right 35 40 35 35 36 Speech recognition ability was measured at 94 percent in the right ear. The examiner diagnosed right ear sensorineural hearing loss. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level I in the then-nonservice-connected left ear. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 resulted in a noncompensable rating. No exceptional pattern of hearing loss is shown. The Veteran was afforded a VA audiology evaluation in July 2015 in connection with his original claim for service connection for left ear hearing loss. Service connection for left ear hearing loss was granted in September 2015 and assigned a non-compensable rating. Audiometric testing results at that time of the July 2015 examination were as follows: Hertz 1000 2000 3000 4000 AVG. Right 35 35 40 40 38 Left 40 35 35 40 38 Speech recognition ability was measured at 96 percent in the right ear and 92 percent in the left ear. The examiner diagnosed left ear sensorineural hearing loss. Applying those values to the rating criteria results in a numeric designation of Level I in the left ear and Level I in the right ear. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 resulted in a noncompensable rating. No exceptional pattern of hearing loss is shown. In addition to dictating objective test results, an audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiner clearly asked the Veteran to identify, in his own words, the impact his hearing impairment had on his daily life, to include his ability to work. He stated reported that he had trouble hearing on the telephone, had difficulty understanding his grandchildren and when driving, was often unable to hear emergency vehicles, and that he had to turn electronic devices up to an level that interfered with other interactions. Therefore, the examination is in compliance with the requirements outlined in Martinak. Further, there are no other audiogram reports of record showing the Veteran to have hearing impairment worse than that reported at his VA audiology evaluations in December 2013 and July 2015. In sum, the Veteran's hearing loss has not been shown to be worse than Level I in the right ear or Level 1 in the left ear. Those results fall within the schedular criteria for a noncompensable (zero percent) rating. Therefore, the criteria for an increased rating have not been met. In addition, consideration has been given to assigning a staged rating. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Earlier Effective Date for Left Ear Hearing Loss Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. §5110(a); 38 C.F.R. § 3.400. The date of entitlement for an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Currently, the Veteran is assigned an effective date of August 5, 2013, for the grant of service connection for left ear hearing loss. That date corresponds to the date VA received the VA Form 21-526, Application for Compensation and/or Pension, which set forth his initial claim of entitlement to service connection for that disability. As the claim was received many years after service separation, he is not entitled to an effective date within one year of his discharge from service. Next, the evidence reveals no indication that a claim of entitlement to service connection for left ear hearing loss was received prior to August 5, 2013. Moreover, the Veteran has not argued that he submitted a service connection claim for that disability prior to August 5, 2013. Based on the above, there is no provision in the law that would allow VA to assign an effective date prior to the date of claim. Accordingly, an effective date of August 5, 2013, for the grant of service connection for left ear hearing loss corresponds to the date on which the Veteran's claim of service connection was received by VA and is the earliest possible effective date that may be assigned in this case. Therefore, the appeal is denied. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). While medical examination or opinion were not obtained in response to the service-connection claims, such were not required to decide the claims on appeal. Specifically, VA is obliged to provide an examination or obtain a medical opinion when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159(c)(4); Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, the Veteran is not entitled to service connection for COPD under any applicable presumption for exposure to herbicides; and, that evidence fails to show any implication for any direct basis for service connection, which would warrant the necessity of a VA examination. Further, neither a cardiovascular disorder nor DM have been diagnosed. With respect to the increased rating claims, VA examinations were undertaken and were adequate to evaluate the increased rating claim. Therefore, further examination is not needed. ORDER Service connection for COPD is denied. Service connection for IHD, is denied. Service connection for DM is denied. Service connection for an acquired psychiatric disorder is granted. An increased (compensable) rating for right ear hearing loss is denied. An increased (compensable) rating for left ear hearing loss is denied. An effective date prior to August 5, 2013, for the grant of service connection for left ear hearing loss is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs