Citation Nr: A21017673 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 201012-115139 DATE: November 2, 2021 ORDER Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, coronary artery disease. 2. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, bilateral hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service to include the periods from April 1971 to August 1973 and from December 1974 to July 1975. The rating decision on appeal was issued in July 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran timely appealed this decision to the Board and requested a hearing, which was held on May 5, 2021. As the Veteran requested the hearing lane, the Board may consider evidence at the time of the rating decision dated in July 2020 and evidence submitted at the May 2021 Board hearing, including the Veteran's testimony, and any evidence submitted within 90 days thereafter. Favorable findings in the July 2020 rating decision include the following: the claimed coronary artery disease is a chronic disease that may be presumptively linked to military service, the Veteran was exposed to herbicides during service, the Veteran was diagnosed with hearing loss disability that had it onset during service, and a positive nexus to service was provided in the June 2020 VA audio examination. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). The Board notes that the Veteran in the September 2020 notice of disagreement stated that he disagreed with the effective date for the service-connected residuals of prostate cancer, noting that the back pay that was given to him from March 2020 should have been given from the time his rating for prostate cancer was reduced. However, the Veteran's attorney during the May 2021 Board hearing clarified that this matter doesn't represent a separate issue from the one that is on appeal under the Legacy System, which is an increased rating for prostate cancer to include a rating in excess of 40 percent prior to March 22, 2020. Thus, the matter of an earlier effective date for residuals of prostate cancer will be addressed in the Legacy System. Issues 1-2 Entitlement to service connection for coronary artery disease and bilateral hearing loss. 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. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic heart disease and other organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Veterans who 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 to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 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 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The current list of diseases subject to presumptive service connection includes ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 C.F.R. §§ 3.307 (a)(6)(ii); 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA policy is to recognize that special consideration of herbicide agent exposure on facts found or direct basis should be extended to those veterans serving during the Vietnam era whose duties placed them on or near the perimeters of Thailand military bases. Such duties for those serving in the Air Force would include security policeman, security patrol dog handler, member of the security policy squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In the instant case, the Regional Office (RO) in a March 2017 rating decision conceded that the Veteran had exposure Agent Orange during service based on his service at the Ubon Royal Thai Air Force Base as a security specialist. The Veteran contends that he has coronary artery disease due to Agent Orange exposure and bilateral hearing loss secondary to the medications he is taking including for his service-connected residuals of prostate cancer. See May 2021 Board hearing transcript. The Veteran testified that his heart problems started approximately two and a half years ago. Service treatment records do not show complaints, findings, or treatment for coronary artery disease or hearing loss. After service on VA heart examination in June 2020, the examiner after reviewing the claims folder and examining the Veteran opined that the Veteran does not have a diagnosis of a heart disorder. The examiner noted that the Veteran went to the emergency room in 2006 for chest pain and work up was negative for coronary syndrome. He had an echocardiogram in September 2019. The examiner acknowledged the Veteran's medical records that in 2019 show he experienced rapid heartbeat with shortness of breath and sweats. The examiner opined that the Veteran did not have cardiac arrhythmia. Physical exam shows heart rhythm was normal and the echocardiogram in 2019 was normal. The Board finds the above opinion to be probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The opinion is uncontroverted by the other competent evidence of record. Thus, the probative evidence of record shows that the Veteran does not have coronary artery diseases. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To establish the presence of a disability, the Veteran needs to show that pain reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As a lay person, the Veteran is competent to report symptoms pertaining to a heart disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology and diagnosis of a heart disorder, to include coronary artery disease, 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). It is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. As for bilateral hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 C.F.R. § 3.303 (a),(d). In the absence of proof of a present disability, there can be no valid claim. See Brammer. The Veteran was afforded a VA audiological examination in June 2020, which shows that he did not meet VA's regulatory criteria for hearing loss. Puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 25, 35, 25, and 25, and puretone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 20, 30, 25, and 25. The speech recognition score, using the Maryland CNC Test, was 100 percent in the right ear and 96 percent in the left ear. While the Veteran believes that he has a diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it is based on audiometric findings and requires specialized medical education/knowledge to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence. For the reasons discussed above the preponderance of the evidence is against the claims for service connection for coronary artery disease and bilateral hearing loss and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Issue 3: Entitlement to service connection for a psychiatric disorder. The Veteran contends that he has depression secondary to his service-connected residuals of prostate cancer. See September 2020 notice of disagreement and May 2021 Board hearing transcript. On VA examination for mental disorders in July 2020, the diagnoses were alcohol use disorder in sustained remission and cannabis use disorder in sustained remission. The examiner noted that although the Veteran reported some mild depressive symptoms, he did not meet the criteria for a depressive disorder and the symptoms may be the residual effects of his substance misuse. In an accompanying opinion the examiner opined that the Veteran's claimed depression, diagnosed as alcohol use disorder and cannabis use disorder, predates his cancer diagnosis and therefore are less likely than not related to his prostate cancer diagnosis. VA disability compensation benefits may not be awarded for disability related to the abuse of alcohol or drugs on the basis of service incurrence or aggravation. 38 U.S.C. § 105; 38 C.F.R. § 3.301. Thus per VA regulations compensation shall not be paid if a disability is the result of the Veteran's own willful misconduct or abuse of alcohol. Id. However, case law provides that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to a service-connected disability. 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The July 2020 opinion is inadequate as the examiner did not address whether the Veteran's alcohol use disorder and cannabis use disorder were aggravated by his service-connected residuals of prostate cancer. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that a VA examiner's opinion that the claimed disability was "related to" factors other than a veteran's service-connected disability was insufficient, as it did not clearly encompass a discussion of aggravation). Under the AMA, the Board must remand a claim to correct an error by the Agency of Original Jurisdiction (AOJ) to satisfy its duty to assist the Veteran under 38U.S.C. §5103A, if the error occurred prior to the AOJ decision on appeal. 38C.F.R. §20.802(a). The AOJ's reliance on a deficient opinion is a pre-decisional duty to assist error, thus an addendum opinion needs to be obtained as to whether the Veteran's alcohol use disorder and cannabis use disorder were aggravated by his service-connected residuals of prostate cancer. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate medical examiner regarding the Veteran's diagnosed alcohol use disorder and cannabis use disorder. The examiner should be provided a copy of the claims file, to include all pertinent treatment records, and this remand. The examiner is asked to do the following: Opine whether it is at least as likely as not (50 percent or greater) that the Veteran's alcohol use disorder and cannabis use disorder were aggravated by the service-connected residuals of prostate cancer. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.