Citation Nr: 21067245 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-08 001 DATE: November 3, 2021 ORDER Entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for inguinal hernia is denied. Entitlement to service connection for hearing loss is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's ischemic heart disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's inguinal hernia did not begin during active service and is not related to an in-service event, injury, or disease. 3. The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for inguinal hernia are not met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2018 and August 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 20201, the Veteran attended a hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for ischemic heart disease is denied. The Veteran claims entitlement to ischemic heart disease. He argues that he did a lot of work while he was on active duty that could have affected his heart. He also argues that he was exposed to cleaning chemicals during service which could have affected his heart. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board finds that the Veteran has a diagnosis for coronary artery disease, but that the Veteran's coronary artery disease did not begin during service or within the applicable presumptive period and is not otherwise related to his active duty. The Veteran's STRs, including the March 1966 separation examination, do not indicate any abnormalities with the Veteran's heart. The Veteran also testified that he went to sick call several times during service, but that he does not recall being treated for a cardiac disability during service. The Veteran's post-service medical records reflect that the Veteran has a diagnosis for coronary artery disease and had a cerebrovascular accident in December 2012. He underwent a coronary artery bypass surgery in January 2013. The Veteran's post-service medical records do not provide a nexus opinion or an indication of a nexus between the Veteran's coronary artery disease and his service. The Veteran testified that he worked on the flight line and came into contact with several chemicals such as carbon tetrachloride during service while cleaning airplanes and that his heart disability may have come from his exposure to these chemicals. However, the Veteran testified that no doctor has told him that his heart disabilities are related to exposure to chemicals such as carbon tetrachloride. The Veteran also testified that his coronary artery disease may have also been related to straining to lift heavy objects during service but has not offered any competent medical evidence to support this contention. Although the Veteran believes that his ischemic heart disease is related to lifting heavy objects or exposure to chemicals such as carbon tetrachloride, the Veteran is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has provided no evidence beyond a bare assertion that his current disability is related to service. The Veteran has not been provided VA examinations with respect to his ischemic heart disease. However, VA need not provide an examination with respect to this claim. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Here, while the Veteran has a diagnosis for coronary artery disease, and the Veteran has testified that he lifted heavy objects and was exposed to cleaning chemicals during service, there is no competent evidence which provides an indication that his current diagnosis may be related to his service, including his contentions that it is related to exposure to chemicals or lifting of heavy objects during service. Thus, a VA examination is not necessary. In a June 2018 statement, the Veteran also alleged that he was in the Republic of Vietnam from April 1965 until November 1965, as well as periods of time after he separated from active duty. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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 that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Any length of time in the Republic of Vietnam during the Vietnam era may be sufficient to establish service connection for subsequently developed diseases based on a presumption of exposure to herbicide agents. As ischemic heart disease is a disease associated with exposure to herbicide agents, the Board has considered whether presumptive service connection is available to the Veteran under 38 C.F.R. § 3.309. Although the Veteran has alleged that he served in the Republic of Vietnam during active military service, the Board finds that this statement is not credible as it is contradicted by the Veteran's service personnel records in the claims file. The Veteran's DD 214 shows that the Veteran served on active duty from July 1961 to March 1966 and did not have any foreign and/or sea service. The Veteran's remaining service personnel records indicate that the Veteran served within the United States during his entire period of active duty. The Veteran has not provided any other evidence beyond his statement to support his contention that he served in the Republic of Vietnam. Therefore, as the Veteran's assertion is not credible, the Board finds that the Veteran did not have active duty in the Republic of Vietnam, and therefore, presumptive service connection is not available. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for ischemic heart disease and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for right inguinal hernia is denied. The Veteran also contends that he is entitled to service connection for a right inguinal hernia. He contends that his right inguinal hernia was caused by groin strains which occurred when he was lifting heavy objects during service. The Board finds that the Veteran has a diagnosis for a right inguinal hernia, but that the Veteran's right inguinal hernia is not related to his active duty. The Veteran testified that he did not seek medical attention during for any groin strains that may have occurred during his active duty. However, the Veteran's STRs show that the Veteran complained of right testicle pain in January 1966 and was diagnosed with epididymitis. The Veteran was treated, and his epididymitis was resolved and not noted on his March 1966 separation examination. The Veteran's post-service medical records show that the Veteran contacted his VA treatment providers in July 2012 and reported that he had a swollen area in his right groin "like an egg" and that he had it for a couple of weeks. The Veteran was advised to go to an emergency room for an examination. The Veteran was treated and underwent surgery for a right inguinal hernia in December 2012. A November 2012 treatment record shows that the Veteran reported that he noticed the hernia in May or June 2012 after he and his wife had gotten into an accident. The Veteran's post-service treatment records do not provide a nexus opinion or an indication of a nexus between the Veteran's right inguinal hernia and his service. The Veteran has not been provided with a VA examination with respect to his right inguinal hernia. However, in this case, there is no competent, credible evidence indicating that his right inguinal hernia may be associated with his service, to include lifting of heavy objects during service or his in-service epididymitis. The Veteran's post-service medical records indicate that his 2012 right inguinal hernia is related to an accident which occurred in May or June 2012. Thus, a VA examination is not necessary. 38 C.F.R. § 3.159(c)(4). While the Veteran believes that his right inguinal hernia is related to his active duty, he is not competent to provide a medical nexus opinion in this case. The question is medically complex, as it requires knowledge of the interaction between multiple body systems and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, as there is no competent evidence linking the Veteran's right inguinal hernia to his service, to include the lifting of heavy objects or his documented in-service epididymitis, preponderance of the evidence weighs in favor of finding that the Veteran's right inguinal hernia is related to a post-service accident, and thus, service connection must be denied. 3. Entitlement to service connection for hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss. He contends that hr was exposed to loud noises while working on airplanes which is related to his current bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 Veteran has a current diagnosis for bilateral hearing loss, but the Board finds that the Veteran's hearing loss is not related to an in-service injury or disease and did not manifest during service or to a compensable degree within the applicable presumptive period. The Veteran testified that he was exposed to acoustic trauma during service while working on the flight line. The Veteran is competent to report the acoustic trauma he experienced during service. The Veteran attended a VA examination in October 2014 and June 2018. The June 2018 VA examiner opined that the Veteran's hearing loss was less likely than not related to service because there was no evidence of auditory damage on active duty or report of decreased hearing in service. However, the Board finds that the June 2018 VA examiner's rationale is insufficient to support the conclusion that the Veteran's hearing loss is less likely than not related to his active duty, so the Board is not relying on this opinion. The October 2014 VA examiner diagnosed the Veteran with bilateral hearing loss. The examiner opined that it was less likely than not that the Veteran's hearing loss was related to his active duty. The VA examiner explained that there was no evidence of a significant threshold shift during service when comparing the Veteran's June 1961 entrance examination to his March 1966 separation examination. The examiner also noted that the Institute of Medicine (IOM) study (2006) "Noise and Military Service: Implications for Hearing Loss and Tinnitus," stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The U.S. Court of Appeals for Veterans Claims has discussed the above noted 2006 IOM report, and noted that the IOM report concluded, in part, that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss", but also that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Id. The October 2014 VA examiners relied, in part, on the 2006 IOM report as a basis for providing a negative opinion and the 2006 IOM report has apparently qualifying or contradictory statements, as noted by the Court in McCray. The Board finds that does not render the opinion inadequate or diminish its probative value. The IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss; however, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term ("unlikely"). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested "a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." The Board finds that the use of the word 'extremely' also lends much support to finding that the report retains its probative value and is not inadequate. Moreover, the Court in McCray referenced "a medical text's qualifying or contradictory aspects" as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. See McCray, 31 Vet. App. at 257. Here, the VA examiners only partially relied on the findings of the 2006 IOM report and discussed other factors that were contributors to the Veteran's current hearing impairment. For example, the examiner discussed the lack of significant threshold shifts in service. Thus, the VA examiner did not rely entirely on the IOM report in forming the conclusion but, instead, considered all relevant facts in this case. Hearing loss is also an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309. However, service connection is not available on a presumptive basis because the evidence of record does not support that the Veteran's hearing loss had its onset in service. Despite repeated questioning at the hearing, the Veteran did not testify that his hearing loss began during service. Additionally, the Board has considered whether there was evidence of some degree of hearing loss in service as the Veteran's March 1966 separation examination shows a threshold of 35 decibels at 6000 Hertz in the Veteran's left ear. Hensley. As the 6000 Hertz frequency is not used to determine whether a Veteran has hearing loss for VA purposes, the Board finds that the March 1966 separation examination does not indicate some degree of hearing loss in service. While the Veteran believes that his left ear hearing loss is related to his active duty, and she is competent to report his symptoms, he is not competent to provide a medical nexus opinion in this case. The question is medically complex, as it requires knowledge of the interaction between multiple body systems and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the preponderance of the evidence is against the claim for a bilateral hearing loss disability. Consequently, because a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and entitlement to service connection for a bilateral hearing loss disability is denied. See 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for a right knee disability is remanded. 2. Entitlement to a TDIU is remanded. The Veteran is service connected for a right knee disability and is seeking a disability rating in excess of 30 percent. The Veteran attended VA examinations in October 2014, February 2018, and June 2018. Unfortunately, the examinations do not comply with the requirements of relevant caselaw as the examiner did not perform tests for passive range of motion or clearly explain why those tests were not conducted, but rather simply stated that there was no evidence of pain on passive range of motion testing, which does not comply with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016), Because the record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria, and as the previous examination did not comply with the Court's ruling in Correia, a new examination is warranted. As the Veteran's claim for entitlement to a TDIU is intertwined with the Veteran's claim for an increased rating for his knee disability, a remand of that claim is also required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing). If the examiner is unable to perform any of the above range of motion tests, the examiner must clearly explain why those tests could not be conducted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.