Citation Nr: 19167366 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 16-11 226 DATE: August 29, 2019 ORDER 1. Entitlement to service connection for ischemic heart disease as being due to herbicide exposure is granted. 2. Entitlement to service connection for a bilateral hearing loss disability is denied. 3. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of ischemic heart disease and was exposed to herbicide agents during his service in Vietnam. 2. A bilateral hearing loss disability is not shown to have had its onset in service, was not manifested to a compensable degree within one year of service discharge and is not otherwise related to service. 3. Tinnitus is not shown to have had its onset in service, was not manifested to a compensable degree within one year of service discharge and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1966 to April 1968. The Veteran was afforded a Board hearing via video-conference in April 2019. Service Connection—Generally Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(6)(iii). Ischemic heart disease is such a disease. VA has validly interpreted the “service in the Republic of Vietnam” language of the statute and regulation as requiring that a veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam Era. Where a Veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are chronic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Under VA regulations, hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for ischemic heart disease The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for ischemic heart disease. The reasons follow. The Veteran’s Military Personnel Records show that he served in the Republic of Vietnam from September 1966 to September 1967. Accordingly, the Board finds the Veteran is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a). At the time of the April 2019 hearing, there was evidence that the Veteran had coronary artery disease that was determined by a medical professional to be non-ischemic in nature, which was the reason the RO denied the claim for service connection for ischemic heart disease in the January 2015 and March 2015 rating decisions. Since the April 2019 hearing, the Veteran submitted a June 2019 statement from his cardiologist, who has written that the Veteran has ischemic heart disease, which the examiner stated was shown in a May 2018 echocardiography. Thus, there is competent evidence of a diagnosis of ischemic heart disease. Accordingly, as the Veteran was exposed to herbicides while in Vietnam and ischemic heart disease is presumed to be related to that exposure, the Board finds that a grant of service connection is warranted for ischemic heart disease as due to exposure to herbicide exposure. 2. Entitlement to service connection for a bilateral hearing loss disability At his April 2019 hearing, the Veteran testified that he worked as a welder and rode in trucks without mufflers during service, which caused his bilateral hearing loss. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for a bilateral hearing loss disability. The reasons follow. Regarding evidence a current disability, an October 2014 VA audiological examination shows that the Veteran has been diagnosed with a bilateral hearing loss disability for VA purposes. Thus, the Veteran meets the first element of a claim for service connection. Regarding evidence of an in-service disease or injury, the February 1968 Report of Medical Examination audiometry test does not show hearing loss in either the right or left ear. In the February 1968 Report of Medical History that the Veteran completed at that time, he specifically denied a history of both hearing loss and ear, nose, and throat trouble. Thus, bilateral hearing loss was not shown in service. However, the Board concedes that the Veteran was exposed to loud noises in service. Therefore, the Veteran meets the second element of a claim for service connection to the extent that he was exposed to loud noises in service. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against such a nexus. For example, in August 2012 the Veteran was seen by VA. When performing a review of systems, the examiner wrote that the Veteran denied symptoms of hearing loss, tinnitus, pain or discharge, and vertigo. In March 2014, when performing a physical examination, the examiner wrote that the Veteran was negative for ear drainage and hearing loss. Thus, over 40 years after service discharge, the evidence did not show that the Veteran had hearing loss. This evidence shows that the Veteran’s hearing loss had its onset decades after service, which is evidence against the claim. Additionally, an October 2014 VA examiner opined that the Veteran’s hearing loss disability was less likely than not related to service. The examiner reasoned that no threshold shifts were noted in the Veteran’s claims file on his audiograms during service. This is further evidence against a nexus between the current bilateral hearing loss disability and service. There is no competent evidence establishing that the Veteran’s current bilateral hearing loss disability is otherwise related to service to weigh against the October 2014 VA opinion. The Board acknowledges the Veteran’s assertions that his bilateral hearing loss disability is related to his period of active duty. The Veteran is qualified to state that he has experienced hearing loss. However, to the extent that the Veteran attempts to assert a nexus between his bilateral hearing loss disability and noise exposure during service, such assertion is afforded no probative weight, as the Veteran has not been shown to possess the medical expertise needed to render a complex medical opinion on the cause of his bilateral hearing loss. Regarding presumptive service connection, there is no competent evidence that the Veteran’s bilateral hearing loss disability manifested within one year of the Veteran’s discharge from service. Rather, the evidence of record shows that the Veteran’s bilateral hearing loss disability was first diagnosed in October 2014, which is more than 45 years after service. Prior VA treatment records dated in August 2012 and March 2014 are negative for hearing loss. As such, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a), 3.309(a). The Board has considered the article submitted by the Veteran entitled “Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth.” This article discusses a clinical study that suggests that age-related hearing loss can be exacerbated by previous hearing damage caused by loud noise. However, the Veteran’s file does not show that the Veteran suffered hearing damage caused by loud noise during service since his hearing test at separation did not show hearing loss and he specifically denied hearing loss at service discharge. The Board finds that this article does not assist in granting service connection. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability on both direct and presumptive bases. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for tinnitus At his April 2019 hearing, the Veteran testified that he served as a welder and rode in trucks without mufflers during service, which caused intermittent ringing in his ears that began during service. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to service connection for tinnitus. The reasons follow. As to evidence of a current disability, the Veteran has been diagnosed with tinnitus. Thus, the Veteran meets the first element of a claim for service connection, which is evidence of a current disability. Regarding evidence of an in-service disease or injury, as noted above, the Board concedes that the Veteran was exposed to loud noises in service. Thus, the Veteran meets the second element of a claim for service connection to the extent that he was exposed to loud noises in service. While the Veteran testified at the April 2019 hearing that he had intermittent tinnitus during service, the Board does not find that testimony to be credible. The Veteran began seeking treatment at VA in 2004, and was seen for multiple medical complaints, which did not include tinnitus. When specifically asked about tinnitus in August 2012, he denied it. When asked about tinnitus at the October 2014 VA examination, he reported an onset of approximately two months prior. If he had experienced tinnitus in service, he would have stated such at that time. All of this tends to show that the Veteran’s tinnitus began decades after service. Thus, while the Board concedes that the Veteran had noise exposure during service, it does not concede that he had tinnitus in service. At the hearing, the Veteran had stated that he was confused by the question asked at the October 2014 VA examination about when his tinnitus started, as he stated his tinnitus had been intermittent since service. The Veteran’s response of an onset of tinnitus in 2014 is consistent with the VA treatment records, which, as noted above, show multiple medical complaints beginning in 2004, which did not include tinnitus. He also specifically denied having tinnitus in August 2012. Thus, the Board finds that what is documented in the October 2014 VA examination report is accurate. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against such a nexus. For example, in August 2012 the Veteran was seen by VA. When performing a review of systems, the examiner wrote that the Veteran denied symptoms of hearing loss, tinnitus, pain or discharge, and vertigo. Thus, over 40 years after service discharge, the Veteran was denying having tinnitus. Additionally, at the October 2014 VA examination, the Veteran reported the onset of tinnitus approximately two months prior. The VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran reported the onset of his tinnitus about two months prior to the examination, which is many years after separation from service. This is evidence against a nexus between the current tinnitus and service. There is no competent and credible evidence establishing that the Veteran’s current tinnitus either had its onset during service or is otherwise related to service. The Board acknowledges the Veteran’s assertions that his tinnitus is related to active service. The Veteran is qualified to state that he has experienced tinnitus. However, to the extent that the Veteran attempts to assert a nexus between his tinnitus and noise exposure during service, such assertion is afforded no probative weight, as the Veteran has not been shown to possess the medical expertise needed to render a complex medical opinion on the cause of his tinnitus. Regarding presumptive service connection, there is no competent and credible evidence that tinnitus manifested to a compensable degree within one year following the Veteran’s service discharge. See 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, the October 2014 VA examination documents the Veteran’s report that his tinnitus had its onset about two months prior to the examination. As such, service connection is not warranted based on a presumptive basis. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus on both direct and presumptive bases. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Caruso, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.