Citation Nr: 21062356 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-35 003 DATE: October 7, 2021 ORDER Entitlement to service connection for narcolepsy with cataplexy is denied. Entitlement to service connection for right hearing loss is granted. REMANDED Entitlement to service connection for cardiovascular disease to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. Entitlement to service connection for ischemic heart disease to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. Entitlement to service connection for peripheral arterial disease to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. Entitlement to service connection for hypertension to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. Entitlement to service connection for chronic obstructive pulmonary disease to include as due to herbicide and/or chemical/environmental hazard exposure is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current disability of narcolepsy with cataplexy. 2. The Veteran's preexisting right ear hearing loss was aggravated by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for narcolepsy with cataplexy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Army from October 1973 to June 1975, and from June 1975 to August 1978. This matter is on appeal from a December 2015 rating decision. The Veteran was afforded a June 2021 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay 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 fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Narcolepsy without cataplexy The Veteran claims that his narcolepsy without cataplexy is related to active duty service. At the Veteran's June 2021 hearing, the Veteran testified that his condition was never reported while in service but that other drivers were informed to watch the Veteran during late-night drives and to wake him up if he began to drive off the road. The Veteran later stated that he stopped driving a truck shortly after separation because of concerns he would hurt someone. The Veteran further testified that he has never been tested or diagnosed for this condition. Review of the Veteran's medical treatment record shows no complaints, treatments or diagnosis for narcolepsy. The Veteran has not submitted any other statement, argument, or medical evidence other than his testimony to show he currently has narcolepsy without cataplexy disability. The Board notes that there was no examination held for the Veteran's narcolepsy without cataplexy disability. However, the Board finds VA was not obliged to provide an examination or obtain an opinion on the Veteran's claimed condition because there was no competent evidence that shows the Veteran has a current narcolepsy without cataplexy disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim); see also 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i). As the threshold for finding that the evidence of record indicates that there is a claimed current disability has not been met, VA was not obliged to provide an examination or obtain an opinion in response to this claim. McLendon, 20 Vet. App. at 83. In summary, the preponderance of the record weighs against a finding that the Veteran's has had a current narcolepsy without cataplexy disability at any time during the course of the appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and the Veteran's claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Right ear hearing loss The Veteran contends his right ear hearing loss is related to service. Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309 (a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a December 2015 VA examination. The Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 78 105 105+ 86 LEFT 15 20 45 35 29 Maryland CNC testing was 0 percent for the right ear and 100 percent for the left ear. In a July 2016 VA examination. The Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 100 100 100 100 100 LEFT 10 20 45 40 28.75 Maryland CNC testing was 0 percent for the right ear and 100 percent for the left ear. As such, the Board finds the Veteran with a current right ear hearing loss disability. Review of the Veteran's service treatment records show at the Veteran's January 1973 enlistment examination, the Veteran's audiometer measured the Veteran's puretone thresholds as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 40 - 60 - LEFT 30 25 - 35 - The Veteran reported ear trouble and difficulty hearing. The examiner noted "no disqualifying defects noted." As the January 1973 audiometer findings documented the right ear with at least 3 puretone thresholds at 26 decibels or greater, the Board finds the testing results to meet the criteria as outlined in 38 C.F.R. § 3.385 to show an assessment of preexisting right ear hearing loss at the Veteran's enlistment examination. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 ; Hensley v. Brown, 5 Vet. App. 155, 160-61 (1993). If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. As there was a preexisting right ear hearing loss noted on enlistment, the question for the Board is whether the Veteran's preexisting right ear hearing loss increased in severity during service. If so, the next question is whether there is clear and unmistakable evidence that the increase was not beyond its natural progression as a result of service. In the January 1973 enlistment examination, the provider noted the Veteran was "not qualified for Army [military occupational specialties] involving exposure to loud or constant noise." In May 1977 a request was made to evaluate the Veteran's hearing loss; the treating provider noted unilateral high frequency loss and found the Veteran's hearing had not changed. At the Veteran's April 1979 separation examination, the Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 50 60 60 - LEFT 15 5 5 5 - Resolving reasonable doubt, the Board finds that it is at least as likely as not that the Veteran's preexisting right ear hearing loss increased in severity during service. As such, the presumption of aggravation attaches. The Veteran's DD214 form showed the Veteran's MOS was a motor transport operator. At the Veteran's December 2015 VA examination, the Veteran reported that he served in the military as a truck driver with no combat service. The Veteran reported noise exposure from "military (range) and occupational (20 years as a carpenter)". The examiner found the Veteran's right ear hearing loss existed prior to service. The examiner opined that the right ear hearing loss was not aggravated beyond normal progression, stating that no significant threshold shifts were noted in the Veteran's STRs. At the Veteran's July 2016 VA examination, the examiner opined the Veteran had bilateral hearing loss entering the military; the examiner found the Veteran's hearing thresholds did not decrease at his separation and stated "Today's [VA examination] results show better hearing thresholds in all frequencies in the right ear than when he was tested at the military." The examiner stated that there was no military event that happened to cause unilateral hearing loss in the military and therefore found it less likely than not the Veteran's right ear hearing loss was not due to or aggravated beyond normal progression in service. In an April 2019 statement from the Veteran, the Veteran reported exposure to weapons fire, noise from truck convoys, war games, and from a tanker explosion when it caught fire. At the Veteran's June 2021 hearing, the Veteran testified that although he was given a profile against loud noises when entering service, he was assigned to a tank battalion where "I have heard some of the most terrible noises." The Veteran also stated that there were fighter jets that would fly over and shoot off... it was noisy for me", he fired various machine guns and was never issued hearing protection. After review of the evidence of record, the Board finds the Veteran's preexisting right ear hearing loss increased in severity during service and there is no clear and unmistakable evidence to rebut the presumption that the hearing loss worsened beyond natural progression during active service. The evidence is at most in equipoise on that point. The Veteran's STRs show evaluation in May 1977 to evaluate hearing loss after his enlistment examination as well as increase in puretone thresholds at his separation examination to show worsening during service. The Board finds the Veteran is competent to report that he experienced symptoms of hearing loss during this period. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms combined with his duties and experiences in service were attributable to the Veteran's current right ear hearing loss. Although both the December 2015 and July 2016 VA examiners opined that the Veteran's right ear hearing loss was not aggravated by service, the examiner do not address or consider the May 1977 requested evaluation for right ear hearing loss and do not stated that there was no clear and unmistakable evidence to rebut the presumption that the hearing loss worsened beyond natural progression during active service. The opinions also do not consider the Veteran's April 2019 statements and June 2021 hearing testimony regarding his noise exposure during service and whether that would have been probative to their findings and opinions. As such, the Board affords these opinions less probative weight. Therefore, as the presumption of aggravation has not been rebutted, the Board finds that service connection for right ear hearing loss based on aggravation is warranted. REASONS FOR REMAND The Board finds remand is warranted for additional development. The Veteran contends that his cardiovascular disease; ischemic heart disease; peripheral arterial disease; hypertension; gastroesophageal reflux disease (GERD); and chronic obstructive pulmonary disease (COPD) are related to his active-duty service. The Veteran has stated or testified that exposure to Agent Orange herbicide or toxic/chemical exposure may have been the cause of his claimed conditions. In September 2015 the Veteran asserted that he was exposed to herbicides from vehicles returning from Vietnam while he was stationed in Germany. The Veteran in July 2016 and April 2019 statements as well at his June 2021 hearing, reported exposure to hazardous, toxic, or chemicals relating transporting materials as a truck driver for the Chemical and Biological Defense Program. Review of the claims record does not show the Veteran has been afforded a VA examination to determine the nature and etiology of these claimed conditions; therefore, remand is warranted to obtain an examination and opinion. At the Veteran's June 2021 hearing, the Veteran testified that during the time from his separation in 1978 to his visit to VA medical centers (VAMC) in 2002, the Veteran saw a family provider beginning 1995 for symptoms of chest pain. Review of the claims records does not show records of this visit; therefore, the Board finds that there are outstanding records and remand is also warranted to obtain any outstanding private or VA treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for his cardiovascular disease; ischemic heart disease; peripheral arterial disease; hypertension; GERD; or COPD disability. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. (a.) If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Arrange for exhaustive development with the appropriate agencies for all pertinent information and relevant records under the applicable regulation with a request for a formal memorandum to determine or verify whether the Veteran was exposed to herbicide during his service to include exposure to vehicles from Vietnam while stationed in Germany. (a.) If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the appellant and notify the appellant of VA's inability to verify the in-service herbicide agent exposure. 4. Schedule the Veteran for an appropriate VA examination to assess the nature and etiology of the Veteran's claimed cardiovascular disease; ischemic heart disease; peripheral arterial disease; hypertension; GERD; or COPD disability. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Identify each current cardiovascular disease; ischemic heart disease; peripheral arterial disease; hypertension; GERD; or COPD disability. If any disability existed during the appeal period to the present but has resolved, this should be made clear. (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cardiovascular disease had its onset during, or is otherwise related to, the Veteran's active-duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (c.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's ischemic heart disease had its onset during, or is otherwise related to, the Veteran's active-duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (d.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral artery disease had its onset during, or is otherwise related to, the Veteran's active-duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (e.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension had its onset during, or is otherwise related to, the Veteran's active-duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (f.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's GERD had its onset during, or is otherwise related to, the Veteran's active-duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (g.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's COPD had its onset during, or is otherwise related to, the Veteran's active duty service to include herbicide exposure or to chemical/toxic exposure from transporting hazardous material? (h.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (i.) The examiner is asked to address the statements made by the Veteran in July 2016, August 2016, and April 2019; the June 2021 testimony; and articles submitted in April 2019. (j.) The examiner is advised that it is insufficient to conclude that any diagnosed cardiovascular disease; peripheral arterial disease; hypertension; GERD; or COPD are not directly caused by herbicide exposure solely because they are not on the list of diseases presumptively associated with herbicide exposure. (k.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (l.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (m.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. (n.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.