Citation Nr: 21061979 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-05 515 DATE: October 6, 2021 ORDER Service connection for arteriosclerotic heart disease (ASHD), status post coronary artery bypass graft (CABG) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran is not presumed or actually shown to have been exposed to herbicide agents in service. 2. The Veteran's ASHD, status post CABG, was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for ASHD, status post CABG, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1960 to July 1980. The Veteran testified at a hearing before the undersigned in April 2018. A transcript of the hearing has been associated with the record. The case was previously before the Board in July 2018 and April 2020, when it was remanded for additional development of the evidence. Following the July 2018 Board remand, in a March 2019 rating decision, service connection for tinnitus was granted. Therefore, that issue is no longer on appeal. In April 2020, the Board found that the development ordered in the July 2018 remand was not sufficient for rating purposes relating to the claim for service connection for bilateral hearing loss. As pointed out by the Veteran's representative, the addendum opinion obtained continues to be insufficient for appellate consideration. Therefore, that issue will be addressed in the remand section below. Stegall v. West, 11 Vet. App. 268, 271 (1998). The requested development relating to the claim for service connection for ASHD, status post CABG, was accomplished. Entitlement to service connection for ASHD, status post CABG The Veteran asserts that he was exposed to Agent Orange while serving in the Navy and, as a result, he developed ASHD that resulted in a CABG. In addition, the Veteran contended during the April 2018 Board hearing that his heart disease began while he was on active duty. It was pointed out that he was treated for chest pain while he was on active duty. Alternatively, it is contended that the Veteran was exposed to an herbicide agent while in service and, thus, his diagnosed heart disease is subject to presumptive service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). Generally, a veteran who, during active military service, served in the Republic of Vietnam or the Demilitarized Zone of Korea; or who operated, maintained, or served aboard certain U.S. Air Force aircraft during the Vietnam era shall be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The law in this area has undergone significant changes. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Following Procopio, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ("the Act")) was signed into law. The Act further clarified "presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam." The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Regarding the Veteran's claim that he was exposed to herbicide agents in service, his service personnel records do not show that the Veteran had in-country service, to include within the waters in the vicinity of the Republic of Vietnam. The Veteran's service personnel records show that he served onboard several ships during his years of service, including the USS Helena, USS Dale, USS Tattnall, USS Farragut, USS Opportune, and USS Fiske. Official records show that none of these ships, as well as additional vessels including the USS Franklin D. Roosevelt, did not operate in the inland waterways, dock along the coast, or operate in the Republic of Vietnam's close coastal waters at any point during the periods that the Veteran was aboard those ships. In an April 2021 statement, the Veteran asserted that he participated in rescue operations in the Gulf of Tonkin while serving onboard the USS Dale between September 1965 and September 1966. As noted, a search of all available records has failed to demonstrate that he had probable exposure to herbicides while onboard this vessel. Crucially, the record contains copies of the ship logs from the various vessels on which the Veteran served. Based on these logbooks, there is no evidence that any of the ships were located within 12 nautical miles of the landmass of the Republic of Vietnam at any time when the Veteran was stationed on each vessel, including the USS Dale. Therefore, the Veteran's statement carries no probative weight on the question of possible exposure to herbicide agents while in service. The Board reiterates that the Records Research Center has already determined the vessels on which the Veteran served were not located within 12 nautical miles of the landmass of the Republic of Vietnam at any time when the Veteran was stationed on those vessels, and that there is no evidence from service personnel records that the Veteran went ashore at any time. Nonetheless, herbicide agent exposure must still be considered on a facts-found basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran has not indicated that he possesses any specialized knowledge in the scientific field such that he could determine without testing that he was exposed to Agent Orange or other chemicals during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Crucially, the Veteran has not asserted or provided evidence to show that he had any direct contact with Agent Orange or other herbicide agents while in service. Rather, his contention has been that he should be presumed to have been exposed to herbicide agents by virtue of his service aboard several naval vessels. However, as explained above, the research conducted does not show that the presumption of exposure may be extended to the Veteran. While the regulations governing presumptive service connection for herbicide agent exposure do not preclude an appellant from establishing service connection with proof of actual direct causation, here there is no evidence to show such a connection other than the Veteran's statements of on-board exposure. 38 C.F.R. § 3.303(d); Combee, supra. Regarding whether the Veteran's heart disease had its onset during service, the Board notes that the Veteran testified that his heart disease had its onset approximately five years after his discharge from service. He also testified that he was treated for complaints of chest pain while on active duty. Review of the Veteran's service treatment records (STRs) show that the Veteran was treated for pain in the chest after he was injured by a water pitcher. Pain was in the left costal area on inspiration and touch and a bruise was noted in the intercostal muscles. He was also treated for heartburn type pain of the right supra clavicular area. On examination for separation from service, in June 1980, clinical evaluation of the heart was normal. The Veteran's blood pressure reading was 100/68. Post-service treatment records show that the Veteran underwent a CAGB in 2002. Following VA examination in March 2019, the examiner opined that it was less likely than not that the Veteran's heart disease was incurred in or caused by an in-service injury, event, or illness. The rationale was that the Veteran's STRs showed no documentation that the Veteran was seen for any heart related condition while on active duty and that, in the examiner's professional medical opinion, in the absence of any documented evidence of coronary artery disease in service, the Veteran's CABG and stable angina were less likely than not incurred in or caused during service. The Veteran has not presented persuasive evidence that his heart disease is related to his military service. His STRs do not reflect diagnoses of the condition, and there is no medical opinion of record that associates the Veteran's current heart disease to his period of active duty service. Notably, at the April 2018 Board hearing, the Veteran testified that his doctor had told him that his heart disability was related to his military service. As a result, the record was held open 30 days for the Veteran to submit a medical opinion in support of his claim. In the Board's July 2018 remand, it was noted that in May 2018, the Veteran had attempted to submit additional "medical" evidence. However, only a copy of the fax cover sheet was in the record. The Board thus remanded the claim to afford the Veteran another opportunity to resubmit the medical evidence he had attempted to submit in May 2018. In August 2018, the Veteran submitted a letter dated April 2018 from his treating cardiologist; however, this letter only notes that the Veteran is being treated for coronary artery disease (among other medical conditions) and does not relate that disability to his military service. Therefore, this letter from Dr. R.J.B. does not provide any support for the Veteran's claim beyond substantiating that he has a current diagnosis for the claimed condition. As for the Veteran's belief that he has a heart disability related to his military service, as a lay person, he is competent to report symptoms he can personally observe. See 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). To the extent he may assert that his current disability is related to service, he has not been shown to have specialized training sufficient to render an opinion requiring medical expertise, such as the etiology of any certain disability. Accordingly, his statements are not competent evidence to establish service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Under these circumstances, and based on the evidence of record, the Board finds that service connection for ASHD, status post CABG, is not warranted. In reaching this decision, it has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss In accordance with the Board's April 2020 remand, an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss was obtained in April 2020. Review of that negative opinion shows that the rationale included the fact that the Veteran's puretone thresholds at separation from service did not meet the VA criteria for hearing loss. The United States Court of Appeals for Veterans Claims has clearly held that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). As such, the rationale is not sufficient for rating purposes. With regard to the VA audiological examination, the Board notes that the requested VA opinion must be consistent with the ruling cited above. As such, the examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes at the time of separation from service when forming an opinion. If the aforementioned is the basis, or crux, or the examiner's rationale, the opinion would be inadequate on which to base a decision. An additional opinion is necessary in this case. The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination to assess the nature and etiology of his currently diagnosed hearing loss. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655.) The examiner should specifically indicate whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent). The examiner must also provide an opinion as to whether any identified hearing loss is at least as likely as not etiologically related to his military service. The Veteran's claims folder must be made available to the examiner and reviewed in conjunction with the examination. In particular, consideration must be given to the Veteran's assertion of continuity of symptomatology. Further, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate. (Continued on the next page) The examiner should provide a clear rationale and basis for all opinions expressed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.