Citation Nr: 21068414 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-16 870 DATE: November 10, 2021 ORDER Entitlement to service connection for a heart disability, claimed as ischemic heart disease (IHD), to include as due to herbicide agent exposure, is denied. Entitlement to service connection for bilateral hearing loss, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has a heart disability, including ischemic heart disease, at this time. 2. The Veteran's currently diagnosed bilateral hearing loss was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between this disability and his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disability, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1964 to August 1966. These matters are on appeal from May 2015 and February 2016 rating decisions. His decorations for his active duty service include a Combat Infantryman Badge. In July 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the hearing transcript is of record. In August 2020, these matters were remanded by the Board for further development. The Board finds that the evidentiary development complies with the prior remand directives and the claims are ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as cardiovascular-renal disease, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases, including IHD, shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 49 (1990); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). 1. Heart disability The Veteran contends that he a heart disability, including IHD, that is related to his service. The service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnosis related to any heart disability. Post-service VA and private treatment records are void any diagnosis of a heart disability. A January 2004 report indicates that the Veteran's heart echocardiogram was normal. On January 2016 VA heart conditions Disability Benefits Questionnaire (DBQ) examination the Veteran presented with no cardiac history, but had symptoms of vertigo and nausea consistent with Meniere's disease. He did not have any acute CAD and denied chest pain, shortness of breath (SOB), or dyspnea on exertion (DOE). After a thorough examination of the Veteran and a review of the claims file, the examiner indicated that the Veteran had never been diagnosed with a heart disability and did not have one on examination. In July 2020, the Veteran testified that he was diagnosed with either ischemic heart disease or coronary artery disease. He testified that over the last 20 years he was treated for a low heart rate for which he was prescribed medication. In an August 2020 remand, the Board noted that the Veteran's claimed 20 year history of treatment for a low heart rate. VA treatment records confirmed the Veteran had a history of bradycardia and associated syncope. A January 2016 VA examination report indicated the Veteran had never been diagnosed with a heart disability, but did not acknowledge this history. Accordingly, the Board remanded the claim for an opinion regarding the etiology of any diagnosed heart disability. Pursuant to the Board's remand, on December 2020 VA heart conditions DBQ examination, the Veteran presented with a report of bradycardia that he contended started during his service. The examiner stated that it was worth noting that he had never been diagnosed with IHD, nor had he ever had any significant cardiac history. The examiner opined that sinus bradycardia is not clinically significant and that there was no evidence of clinically significant abnormalities or ischemia on current examination. A December 2020 echocardiogram indicated normal left ventricular systolic function. After a thorough examination of the Veteran and a review of the claims file, the examiner opined that the Veteran had never been diagnosed with a heart disability and did not have one on examination. As the competent medical evidence does not show diagnosis of any heart disability, to specifically include IHD, service connection is denied. See Brammer, supra; see also McClain, supra; Romanowsky, supra; Saunders, supra. There is no indication that any subjective complaints related to the Veteran's heart result in functional impairment of earning capacity. See Hunt, supra; Saunders, supra; Wait, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of a heart disability, including IHD, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Therefore, service connection for a heart disability is not warranted. 2. Bilateral hearing loss The Veteran asserts that he has bilateral hearing loss due to noise exposure from gunfire and other sources during service. He had a military occupational specialty (MOS) of weapons infantryman and received a Combat Infantryman Badge. In this regard, the Veteran's claimed exposure to acoustic trauma during service is consistent with the circumstances, conditions, and hardships of his service, and is credible. See 38 U.S.C. § 1154 (b). Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 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 STRs, including a July 1966 separation examination, include audiometric findings which reflect hearing loss, but these findings do not demonstrate hearing loss for VA purposes. Post-service VA treatment records include an April 2002 report which shows that the Veteran presented with complaints of decreased hearing for the last six months. The report stated that his hearing loss was "not noise induced." The Veteran noticed that with loud noises he was especially hard of hearing. He had history of employment as a schoolteacher. The assessment was hearing loss that began six months ago (November 2001) becoming more pronounced. A May 2004 ENT clinic note indicates a history of symptoms suggestive of Meniere's disease, including hearing loss, tinnitus, and vertigo. The assessment was autoimmune hearing loss (bilaterally) with Meniere's syndrome. A May 2015 VA hearing loss and tinnitus DBQ examination confirmed that the Veteran had a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. However, the May 2015 audiologist concluded this hearing loss was less likely than not related to service because the Veteran's separation examination "revealed normal hearing without significant change since enlistment." At the July 2020 Board hearing the Veteran testified that as a light infantryman he was exposed to helicopters and a lot of gunfire during service without hearing protection. He stated that a considerable loss of hearing was found on exit examination and that he first noticed hearing problems almost "immediately" after service. Post-service he worked as a teacher for 30 years and was not exposed to excessive noise. In an August 2020 remand, the Board found that the May 2015 VA medical opinion was based solely on STRs, which show no hearing loss prior to separation. However, the opinion did not reflect consideration of the Veteran's account of in-service noise exposure or reported onset of symptoms shortly after separation. Accordingly, the Board found that the opinion was inadequate because it did not account for this relevant lay evidence and remanded for an addendum. Pursuant to the Board's remand, on September 2020 VA hearing loss and tinnitus DBQ examination the audiologist opined that the Veteran's bilateral hearing loss was not related to his service. The rationale was that the Veteran reported hazardous noise exposure from gunfire and other combat noise during service in Vietnam. He reported that he began noticing difficulty hearing shortly after service. However, hearing thresholds were excellent upon separation with no changes in hearing. In addition, at a May 2004 ENT clinic appointment he reported onset of hearing loss was suddenly three years prior. The audiologist stated that this reporting was inconsistent with what was reflected in his records. The audiologist also noted that the Veteran was diagnosed with Meniere's disease which would not have been caused by noise exposure and/or other military event, and contributed to his hearing loss over the past 10 to 15 years. The Board finds that the claim must be denied. In this case, there is no competent medical evidence that supports the conclusion that the Veteran has any bilateral hearing loss that was incurred in or aggravated by his service. Moreover, the Veteran's STRs are void of any complaint or diagnosis of any disabling bilateral hearing loss. Post-service, medical records do not reflect or reference any history of bilateral hearing loss for over three decades after discharge from active service. More importantly, there is no competent medical evidence to show that the Veteran has bilateral hearing loss that is related to his service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of disabling bilateral hearing loss during service coupled with the fact this diagnosis was not made until over three decades post-service, is sufficient to rebut a finding of service incurrence. Moreover, the September 2020 VA examiner opined that the Veteran's Meniere's disease contributed to his hearing loss over the past 10 to 15 years rather than noise exposure and/or other military event. In this case, the earliest post-service medical evidence of the Veteran's bilateral hearing loss was in November 2001 which is over 35 years after service. This long period without problems weighs against this claim. In addition, continuity of symptomatology has also not been established, either through the competent evidence of record or through the Veteran's statements. Moreover, the Board finds that the Veteran's statements relating his bilateral hearing loss to service are not credible and are afforded no probative value. In this regard, although the Veteran contends that his bilateral hearing loss is related to his service, an April 2002 report shows that the Veteran presented with complaints of decreased hearing for the last six months which the medical provider opined was not noise induced. In addition, although the Veteran testified that "considerable" hearing loss was noted at separation from service, the STRs do not demonstrate any hearing loss for VA purposes. Finally, there is no competent medical evidence that the Veteran has any bilateral hearing loss related to his service. In this regard, the Board notes that the September 2020 VA examining audiologist opined that the Veteran had excellent hearing at separation. Although a Veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity, the audiologist's opinion is based, in part, on her opinion that the Veteran's hearing loss is related to Meniere's disease. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additional considerations The Board has taken the contention that the Veteran has a heart disability and that his bilateral hearing loss was caused by service, seriously. Although the Veteran might believe that he has a heart disability and that his bilateral hearing loss is etiologically related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that he has a currently diagnosed heart disability or any evidence that may serve as a medical nexus between the Veteran's service and his bilateral hearing loss. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the existence of a currently diagnosed heart disability and the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has a heart disability or bilateral hearing loss that is related to his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.