Citation Nr: 21072343 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-28 161 DATE: December 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for ischemic heart disease, to include as due to in-service exposure to an herbicide agent, is denied. Entitlement to service connection for a stroke is denied. FINDINGS OF FACTS 1. The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss was incurred in active service or within one year of separation from active service. 2. The record evidence shows that the Veteran had active combat service in the Republic of Vietnam; thus, his in-service exposure to an herbicide agent is conceded. 3. The weight of the competent and credible evidence does not show that the Veteran has a current diagnosis of ischemic heart disease which is attributable to active service or any incident of service, including as due to his conceded in-service exposure to an herbicide agent. 4. The preponderance of the evidence is against a finding that the Veteran's stroke was incurred in active service or within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to service connection for ischemic heart disease, to include as due to in-service exposure to an herbicide agent, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 3. The criteria for service connection for a stroke have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Navy from July 1967 to April 1971, including in combat the Republic of Vietnam. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing; however, a review of the record shows that he cancelled his Board hearing in April 2021. Thus, his hearing request is deemed satisfied. See 38 C.F.R. § 20.704. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is related to in service noise exposure from aircraft engines and artillery while in Vietnam. Regarding the first element of service connection, a current disability, the Veteran has demonstrated current bilateral hearing loss. VA audiological evaluation in August 2014, revealed puretone thresholds sufficient to establish a "disability" for VA purposes in the bilateral ears. Moreover, the Veteran was diagnosed with bilateral sensorineural hearing loss at this examination. Consequently, the first element of service connection has been met. As to the second element of service connection, an in-service incurrence, the evidence conflicts. A review of the Veteran's service treatment records reflects no complaint, finding, or diagnosis pertaining to hearing loss. On audiological evaluation conducted at his enlistment physical examination in November 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -10 -5 0 LEFT 0 0 0 5 5 On audiological evaluation conducted in May 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -5 0 0 LEFT 10 0 0 5 20 On audiological evaluation conducted at the Veteran's separation examination in April 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 15 LEFT 5 5 5 10 5 Moreover, on report of medical history at entrance in November 1966 and at discharge in April 1971, he denied hearing loss as well as any ear trouble. Although the evidence does not demonstrate in-service hearing loss, the record evidence supports finding that the Veteran was exposed to hazardous noise in service. In May 2016, the Veteran reported that he was assigned to VP2, an aircraft squadron which operated out of the Philippines, during active service. He stated that he was sent to Vietnam twice while in this squadron, once for a month in Cam Ranh Bay and another for a week between February 1969 and August 1969. This is corroborated by the Veteran's service personnel records which show that he was in Patron Squadron Two in 1969, underwent a Navy Training course for Airman, and received a Vietnam Service Medal. VA also conceded that the Veteran likely was exposed to herbicides during active combat service in Vietnam (as discussed in more detailed below). After affording him the benefit of the doubt, the Board finds that the second element of service connection, an in-service occurrence, has been met. Thus, the case turns on the final element of service connection, a nexus between the current condition and service. As to this element, the Board finds that the record evidence preponderates against a finding of a medical nexus between any current bilateral hearing loss and active service. In August 2014, the Veteran presented for a VA examination. He reported exposure to excessive noise from aircraft engines and artillery in Vietnam. He also reported that he had a sudden hearing loss episode in February 2014 that affected his left ear. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 20 40 45 LEFT 90 95 90 95 100 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 0 percent in the left ear. The VA audiologist opined that it is less likely than not that the bilateral hearing loss is related to service, citing that the Veteran's hearing was within normal limits at induction and at separation. In addition, the VA audiologist indicated that there was no significant threshold shift bilaterally after converting ASA thresholds into ISO thresholds. The preponderance of the evidence is against finding that the Veteran's current bilateral hearing loss was incurred in service or is related to in-service noise exposure. The first record of hearing loss was in February 2014, almost 40 years after the Veteran's discharge from service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds the VA audiologist's opinion from August 2014 to be the most probative, as it accurately characterized the service treatment records and onset of the Veteran's hearing loss. In addition, the August 2014 VA audiologist indicated that there were no puretone threshold shifts from entrance and separation. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board acknowledges the Veteran's reports of noise exposure in service which he related to his current bilateral hearing loss. The Board also recognizes that the absence of evidence of in-service hearing loss is not fatal to this claim. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). He is not competent to opine as to the specific cause of his current bilateral hearing loss, however, because such is a medically complex issue. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Even though he reported that his hearing loss began in service due to exposure to noise, he had normal audiograms at entrance and separation examinations. This suggests that there is insufficient evidence to demonstrate in-service incurrence or incurrence of bilateral hearing loss within one year of discharge from service. The Board also finds the conclusions of the VA audiologist more probative than the Veteran's lay statements. The weight of the evidence is against the Veteran's claim that in-service harmful noise exposure caused or contributed to his current bilateral hearing loss. Nor does the weight of the evidence suggest that an organic disease of the nervous system manifested by bilateral hearing loss occurred in service or within one year of separation. In summary, the Board finds that service connection for bilateral hearing loss is not warranted. 2. Entitlement to service connection for ischemic heart disease, to include as secondary to in-service exposure to an herbicide agent. In a September 2016 memorandum for the record, the RO conceded that the Veteran had "in-country" duty in the Republic of Vietnam and was in combat. The RO based its memorandum on a review of the Veteran's lay statements and records from the Naval Historical Center which showed that his squadron was in Vietnam on several occasions when he was assigned to it. The Board agrees with this finding by the RO. Therefore, the Veteran meets the first prong for presumptive service connection based on in-service exposure to an herbicide agents. Regarding a current condition enumerated under 38 C.F.R. § 3.309(e), the Board finds that the evidence weighs against the Veteran's service connection claim for ischemic heart disease. Here, service treatment records do not reflect any complaint, treatment, or diagnosis of cardiac symptoms or ischemic heart disease. At his April 1971 separation examination, the Veteran denied palpitations and a pounding heart. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). More importantly, medical records post-service do not reflect any complaint, treatment, or diagnosis of cardiac symptoms or ischemic heart disease. For example, a July 2013 VA treatment record indicates that the Veteran underwent surgery for hernia and had to undergo cardiology clearance where no active symptoms from his heart were noted. An August 2016 VA treatment record indicates that he had normal cardiovascular and respiratory findings. A February 2017 VA examination report reflects review of the Veteran's claims file. There the VA examiner found that the Veteran's condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, as he did not currently have a diagnosis of a heart condition. To support this opinion, the VA examiner cited various findings in the record which indicated no heart abnormalities, including the July 2013 VA treatment record where the Veteran was given cardiology clearance for surgery. The Board observes here that service connection under any theory requires the existence of a current diagnosis or disability. While the Veteran filed a claim specifically for ischemic heart disease, he did not indicate that he was experiencing any specific symptoms. And the evidence does not reveal any irregular cardiovascular findings. Therefore, the evidence does not reflect a current diagnosis of ischemic heart disease at any time during the appeal period. See Brammer, 3 Vet. App. at 225. The Board considered the lay evidence in this case. As a layperson, the Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. As such, he is competent to report symptoms and experiences. He is not competent to provide a clinical diagnosis of ischemic heart disease, however, as such a determination is medical in nature which requires medical expertise to make. And there is no evidence that he has such medical training. Thus, he has not presented competent evidence showing that he has a current diagnosis of ischemic heart disease. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for ischemic heart disease. In summary, the Board finds that service connection for ischemic heart disease is not warranted. 3. Entitlement to service connection for a stroke The Veteran finally asserts that he incurred a stroke several decades after his service separation as a result of his in-service exposure to Agent Orange (an herbicide agent) while in Vietnam. As noted elsewhere, VA already has conceded that he likely was exposed to an herbicide agent while in Vietnam. Nevertheless, a stroke is not a chronic disease listed in 38 C.F.R. § 3.309(e) for which service connection is available based on such exposure. As such, service connection for a stroke cannot be granted on a presumptive basis. See 38 C.F.R. § 3.309(e). The fact that a Veteran cannot establish entitlement to service connection for a disease or injury on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board in this appeal is whether the Veteran has a current disability due to a stroke which began during service or is at least as likely as not related to an in-service injury, event, or disease. Turning to the medical evidence, in May 2009, the Veteran had a thalamic stroke. At an August 2016 VA medical treatment visit, he was diagnosed as having a cerebrovascular accident. Therefore, the record indicates that he has a current disability. While he had a thalamic stroke in 2009, the preponderance of the evidence is against finding that the Veteran's stroke began during active service or otherwise is related to service. The record reflects no in-service disease or injury that may have caused the cerebrovascular accident. And there are no in-service complaints of or treatment for a cerebrovascular accident. The Board again notes that the lack of in-service evidence is not necessarily fatal to this claim. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. He also does not contend and the medical records do not show that his cerebrovascular accident manifested within one year of his separation from active service. At a VA examination for a heart condition in February 2017, the VA examiner opined that the Veteran's stroke was more likely than not associated with lifelong smoking and hyperlipidemia. This examiner also opined that the Veteran's stroke occurred before his diagnosis of his diabetes and was not caused by or aggravated beyond natural progression by his diabetes based on available medical records. The Board has considered the Veteran's lay assertions that his stroke was due to in-service exposure to an herbicide agent or is the result of a service-connected disability. He is not competent to provide a nexus opinion regarding the contended etiological relationship between a stroke and active service because this is a medically complex issue. And the record does not show that he has the skills or medical training to make such a determination. Thus, his lay assertions regarding the contended etiological relationship between his stroke and active service are entitled to no probative value. See Jandreau, 492 F.3d 1372, 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In contrast, the Board gives more probative weight to the findings of the February 2017 VA examiner who opined that the Veteran's stroke is not related to active service. This opinion was fully supported. See Stefl, 21 Vet. App. at 124. The Board finally acknowledges that the Veteran has not been afforded a VA examination for his stroke. In the absence of any competent and probative evidence indicating that the claimed disability may be associated with service, however, the Board notes that an examination is not required. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The record does not reflect any complaints or treatment during service and the Veteran did not have a stroke until 2009, nearly 30 years after his release from active duty. The Board again notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. See Maxson, 230 F.3d at 1333. The February 2017 VA examiner provided a competent opinion that the stroke is not related to active service. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a stroke. In summary, the Board finds that service connection for a stroke is not warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, 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.