Citation Nr: 21002958 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-14 722 DATE: January 19, 2021 ORDER Entitlement to service connection for peripheral vestibular disorder, claimed as vertigo, has been withdrawn. New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for bilateral hearing loss and a valvular heart disorder, claimed as ischemic heart disease, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and panic disorder, is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a valvular heart disorder, claimed as ischemic heart disease, is remanded. FINDINGS OF FACT 1. During an October 2, 2020 Board of Veterans’ Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran, with his authorized representative, requested a withdrawal of his claim for service connection for peripheral vestibular disorder, claimed as vertigo. 2. In a December 2011 rating decision, the claims of entitlement to service connection for bilateral hearing loss and valvular heart disorder, claimed as ischemic heart disease, were denied because the Veteran did not have a current diagnosis of bilateral hearing loss or ischemic heart disease. The Veteran did not appeal or submit new evidence within the appeal period, rendering the December 2011 rating decision final. He subsequently filed a supplemental claim for entitlement to service connection for bilateral hearing loss and a valvular heart disorder, claimed as ischemic heart disease, in March 2016. In a May 2016 rating decision, the claim to entitlement to service connection for a valvular heart disorder, claimed as ischemic heart disease, was denied because evidence submitted since the last prior final denial was not new and/or material, and the claim for bilateral hearing loss was denied because the Veteran’s hearing loss was determined not to be caused by, related to, and/or aggravated by service. 3. The evidence added to the record since the December 2011 rating decision relates to an unestablished fact that is necessary to substantiate the claims of service connection for bilateral hearing loss and a valvular heart disorder, claimed as ischemic heart disease. 4. The Veteran’s acquired psychiatric disorder, to include anxiety and panic disorder, was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service. 5. The Veteran’s bilateral hearing loss was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for service connection for peripheral vestibular disorder, claimed as vertigo, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. As the evidence received subsequent to the December 2011 rating decision is new and material, the requirements to reopen the claims for bilateral hearing loss and a valvular heart disorder, claimed as ischemic heart disease, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety and panic disorder, have not been met. 38 U.S.C. §§ 1110, 1131,5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 4. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from May 1970 to July 1972. The Veteran testified at a hearing held by the undersigned Veterans Law Judge on October 2, 2020. A transcript is of record. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or his or her authorized representative. Id. In the present case, at an October 2, 2020 Board hearing, the Veteran stated on the record with his authorized representative present that he wished to withdraw his claim for entitlement to service connection for a peripheral vestibular disorder, claimed as vertigo. The undersigned Veterans Law Judge confirmed on the record that the Veteran’s desire to withdrawal was knowing and unambiguous. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a vascular heart disorder, claimed as ischemic heart disease In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case, the Veteran is claiming entitlement to service connection for bilateral hearing loss and a vascular heart disorder, claimed as ischemic heart disease. The Veteran’s claims were previously denied by the regional office (RO) in December 2011 on the basis that the Veteran did not have current diagnoses of the claimed conditions. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claims. After a review of the evidence submitted since the December 2011 rating decision became final, the Board determines that the claims should be reopened. The evidence now includes new and material evidence including new VA examinations and private audiological examinations, which raises the possibility that his bilateral hearing loss and vascular heart disorder, to include ischemic heart disease, are related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claim, it is also “material,” as it relates to an unestablished fact necessary to support the claims. Namely, it shows current diagnoses of the claimed conditions and that there may be a nexus between these currently diagnosed disorders and the Veteran’s active duty service. Therefore, the claims should be reopened on this basis. Service Connection 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. 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 sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year of 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). 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and panic disorder The Veteran asserts that his acquired psychiatric disorder, to include anxiety and panic disorder, is related to active duty service. Specifically, he contends that he began to “freeze” and have panic attacks during flight training, but that he did not seek treatment at the time because he did not know what he was experiencing. He reported that he informed the flight instructor about the incidents. After a review of the evidence, the Board determines that service connection is not warranted. While the Board notes that the Veteran has current diagnoses of anxiety and panic disorder, they were not shown in service and are not related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, the Veteran’s service treatment records do not reflect that he received treatment for a psychiatric disorder during service or within one year after separation from service in July 1972. Most notably, at his separation examination, he specifically denied psychiatric symptoms. While the Veteran testified that he reported these symptoms to his flight instructor, they are not noted in his military personnel records. Indeed, the medical records indicate that the Veteran did not seek treatment for mental health symptoms until March 2012, when he was first diagnosed with anxiety and panic disorder and prescribed medication. The Board notes that this first indication of psychiatric symptoms is approximately 40 years after he left service. Therefore, continuous symptoms have not been shown on a clinical basis. The Board has considered the Veteran’s statements that he has experienced psychiatric symptoms since service. However, the Board is unable to grant service connection purely on his statements alone. While the Veteran has asserted continuous symptoms, the medical evidence of record weighs heavily against his testimony. Specifically, the first diagnosis for a psychiatric disorder occurred approximately 40 years after the Veteran left active service. Moreover, he specifically denied psychiatric symptoms when he left service in 1972. The Board also notes that the Veteran submitted claims for service connection for bilateral hearing loss and ischemic heart disease in March 2011 but did not file a claim for a psychiatric disorder until five years later. Thus, the Board can infer that the Veteran had knowledge of VA benefits system at that time and had the opportunity to file a claim for his psychiatric disability. See generally Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Accordingly, service connection for an acquired psychiatric disability is not warranted, based on continuity of either the medical evidence or the Veteran’s statements. Next, although the evidence does not reflect that the Veteran’s symptoms were continuous since service, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. However, the competent evidence fails to establish a relationship between active duty and the Veteran’s current acquired psychiatric disorders. In this regard, the Board notes that the Veteran’s medical records since service show only minimal treatment for these conditions between March 2012 and February 2015 with no reports to physicians that symptoms have been continuous since service, despite his contentions that these symptoms began in flight training during service. More specifically, when the Veteran was first diagnosed with anxiety and panic disorder in March 2012, he reported that he was under stress at work at the time symptoms began. As such, there is no evidence to support that his psychiatric disorders are related to his active duty service. In arriving at these conclusions, the Board has considered the statements made by the Veteran relating an acquired psychiatric disorder to his active service. The United States Court of Appeals for 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.” 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 etiology of psychiatric disorders. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the contentions of the Veteran linking his disorder to service are found to lack competency. The Board concludes that the weight of the evidence is against the claim for service connection for an acquired psychiatric disorder, and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his active duty service. Specifically, he contends that his job as an aircraft maintenance officer exposed him to daily acoustic trauma as he was required to work in the flight line and aircraft hangar. He reported that the protective ear equipment he was given did not fully block out the noise, and he began to notice hearing loss approximately 18 months after service when he was in graduate school and had difficulty hearing lectures. 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. VA policy has changed with regard to the conversion of in-service audiograms. Formerly, the results of audiometric testing (i.e. puretone thresholds at various frequencies) during active service dated after October 31, 1967 were assumed to have been provided in units of measurement established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Audiometric data prior to October 31, 1967 was assumed to have been recorded in American Standards Association (ASA) units, and thus had to be converted to ISO-ANSI units to enable data comparison and to bring them in line with VA regulation pertaining to hearing loss, which is based on ISO-ANSI units. However, VA policy now is to consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. The conversion from ASA to ISO-ANSI units is accomplished by adding 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 decibels at 4000 Hz. 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. Based on a review of the evidence of record, the Board determines that service connection is not warranted for bilateral hearing loss. First, although the Veteran was exposed to significant noise in service, the service treatment records do not indicate complaints of or treatment for hearing loss, nor was it clinically indicated. A comparison of the Veteran’s tonal thresholds (using the ASA standard because it is more favorable to the Veteran) at an examination in June 1970, one month after he began active duty service, and at his separation examination in 1972 does not reflect a significant worsening in the hearing of either ear. His audiograms throughout service were generally normal with no evidence of significant tonal threshold shifts. Next, the medical records do not contain any evidence of hearing loss until a note in the Veteran’s medical records in August 2011 indicate a past medical history of hearing loss. The first indication of hearing loss is 39 years after he left service. The Board has considered the Veteran’s statements that he has experienced bilateral hearing loss since service. However, the Board is unable to grant service connection purely on his statements alone. Specifically, while the Veteran has asserted continuous symptoms, the medical evidence of record rebuts these assertions. Hearing loss was not documented during regular audiograms in service between 1970 and 1972, and bilateral hearing loss is not mentioned in the medical record until 39 years after the Veteran left service. Even then, despite undergoing a VA examination in August 2011, the audiogram only revealed high frequency hearing loss bilaterally, which does not meet the criteria to be considered a disability for VA purposes. Similarly, a March 2016 VA examination revealed the same results bilaterally and it was noted that he had never worn hearing aids. It was not until the Veteran underwent a private audiogram in August 2020 that he was he diagnosed with mild-to-moderate bilateral sensorineural hearing loss, although the pure tone threshold figures were not provided. Accordingly, service connection for bilateral hearing loss is not warranted based on continuity of either the medical evidence or the Veteran’s statements. Next, although the evidence does not reflect that the Veteran’s symptoms were continuous since service, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. However, the competent evidence fails to establish a relationship between active duty and the Veteran’s current bilateral hearing loss. In this regard, the Board notes the opinion of the VA examiner from August 2011. The examiner did not find that the Veteran had sensorineural hearing loss between 500 Hz and 4000 Hz, but rather had high frequency hearing loss in the range of 6000 Hz or higher bilaterally. This range of hearing loss does not meet the criteria to be considered a disability for VA purposes. Nonetheless, the examiner opined that the Veteran’s high frequency hearing loss is at least as likely as not related to service because the Veteran reported military noise exposure as an aircraft maintenance office with combat history. However, the examiner noted that there were no service treatment records available for review, so their opinion was based on subjective reports rather than objective audiograms during service. Because the Veteran did not have hearing loss for VA disability purposes, and the examiner did not review the service treatment records in forming their opinion, this opinion is not probative. Next, the Veteran underwent an audiogram during a VA examination in March 2016. Similarly, the examiner diagnosed the Veteran with only high frequency bilateral sensorineural hearing loss, which does not meet the criteria to be considered a disability. The examiner opined that it is less likely than not that this hearing loss was caused by service because audiograms in the Veteran’s service treatment records showed normal hearing in both ears for all tested frequencies upon entrance and separation from active duty service and there was no significant shift in hearing when comparing the two exams. Furthermore, the examiner noted that, while delayed onset hearing was not ruled out by the Institute of Medicine’s 2006 article, the requisite studies have not been done to provide a sufficient basis for the existence of delayed-onset hearing loss. Because the Veteran did not have hearing loss that meets the criteria for VA disability purposes and the examiner reviewed the evidence of record, examined the Veteran, and considered his contentions in forming their opinion, the Board finds the examiner’s opinion highly probative. In considering this evidence, the Board notes that there appear to be two private audiograms in the record from December 2014 and August 2020. The August 2020 audiogram records note a diagnosis of mild-to-moderate bilateral sensorineural hearing loss. However, neither audiogram report contains pure tone threshold values or speech discrimination scores. Nevertheless, the Board determines it would be a waste of resources in this instance to remand the claim solely for the purpose of obtaining these records. Specifically, even if these audiological evaluations revealed more extensive hearing loss than shown at the Veteran’s previous VA examinations, such evidence would not rebut the VA examiner’s conclusions and negative opinion, which was primarily based off information contained in the service treatment records. In arriving at these conclusions, the Board has considered the statements made by the Veteran relating his bilateral hearing loss to his active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the etiology of hearing loss disorders. Id. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the contentions of the Veteran linking his disorder to service are found to lack competency. There is otherwise no evidence indicating compensable hearing loss within one year of separation from service, nor is there evidence, aside from the Veteran’s assertions, of a continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. There is also no evidence that the Veteran’s current bilateral hearing loss is etiologically related to service. Therefore, the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. The Board concludes that the weight of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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 REASONS FOR REMAND 1. Entitlement to service connection for a valvular heart disorder, claimed as ischemic heart disease The Veteran asserts that he has ischemic heart disease and that it is related to his active duty service. The Veteran underwent a VA examination in March 2016, which determined that the Veteran does not have ischemic heart disease, but that he does have valvular heart disease that is not likely related to military service. However, the examiner did not provide a supporting rationale for this opinion. As such, a remand is warranted for a new opinion that adequately explains whether the Veteran’s valvular heart disease is caused by, related to, and/or aggravated by his active duty service and provides an adequate rationale for such determination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Board notes that the Veteran reported that he is seeing a private cardiologist and has outstanding medical records from this provider. Thus, on remand, the Agency of Original Jurisdiction (AOJ) should take the appropriate steps to attempt to obtain the Veteran’s private treatment records. The matters are REMANDED for the following action: 1. The AOJ should obtain and associate any updated VA treatment records, and attempt to obtain and associate any private treatment records, with the claims file. 2. Forward the claims file to the VA examiner who conducted the examination in March 2016 (or to another VA examiner if the original examiner is unavailable) for an addendum opinion to identify all of the Veteran’s current cardiac disorders and opine as to whether his cardiac disorders are at least as likely as not (i.e. a 50 percent or greater probability) caused by, related to, and/or aggravated by his active duty service. The examiner should review this remand and the evidentiary record and provide a comprehensive report, including complete rationales for all opinions. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kimber Veltri, Associate Counsel