Citation Nr: 21077222 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-21 995 DATE: December 29, 2021 ORDER Service connection for atherosclerotic cardiovascular disease is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam from March 1967 to March 1968; his exposure to herbicide agents is therefore presumed. 2. The Veteran has been diagnosed with atherosclerotic cardiovascular disease. 3. The evidence as to whether the Veteran's tinnitus had its onset in service is at least in equipoise. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for atherosclerotic cardiovascular disease have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1966 to October 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to service connection for ischemic heart disease, to include atherosclerotic cardiovascular disease, to include as due to exposure to herbicide agents The Veteran seeks to establish service connection for ischemic heart disease on a presumptive basis, as due to exposure to herbicide agents. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include ischemic heart disease, which includes atherosclerotic cardiovascular disease. 38 C.F.R. § 3.309(e). As an initial matter, the Board notes that military personnel records confirm that the Veteran served in Vietnam during the requisite time frame. His exposure to herbicide agents is therefore presumed. The key issue before the Board is whether he has a diagnosis of ischemic heart disease that is subject to presumptive service connection. Turning to the medical evidence of record, the Board notes that an April 2011 private treatment record shows that the Veteran was diagnosed with non-obstructive coronary artery disease (CAD) at that time. Turning to more recent records, a May 2018 private treatment record shows a diagnosis of atherosclerotic heart disease of the native coronary artery. The Board acknowledges that an April 2015 VA examiner found that the Veteran had not been diagnosed with any heart condition. He also noted, however, that he could not find any records that contained any mention of heart trouble. Inasmuch as the records indicating that the Veteran has a current diagnosis of ischemic heart disease were not submitted until after the April 2015 VA examination, the Board notes that the examiner was unable to review them. The April 2015 VA examiner's findings are therefore of limited probative value. In light of the above, the Board finds that the criteria for an award of service connection for ischemic heart disease have been met. Regulations specifically provide that both CAD and atherosclerotic cardiovascular disease are included in the definition of ischemic heart disease. 38 C.F.R. § 3.309(e). As the Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam, and he has a current diagnosis of ischemic heart disease, the appeal of this issue is granted. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is due to noise exposure he experienced during service. Specifically, he testified at the July 2021 Board hearing that he was in the artillery during service, that he was exposed to noise in that capacity, and that he was also exposed to noise from mortars. He further testified that ringing in his ears was present in service and had continued since. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The United States Court of Appeals for Veterans Claims (Court) has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no material dispute that the Veteran has tinnitus, as demonstrated by a May 2015 VA examination. The Board also finds that he was exposed to hazardous noise during service, inasmuch as military personnel records confirm that his principal duties were as a gunner and cannoneer, which is consistent with his reports of frequent exposure to hazardous noise from artillery. As to the nexus, or link, between the Veteran's tinnitus and service, he is competent to provide statements with respect to the onset and presence of tinnitus, inasmuch as such symptoms are observable by a lay person. The Board finds his statements with respect to the onset and continuity of tinnitus to be credible. The Board acknowledges that the VA audiologist who evaluated the Veteran in May 2015 offered an unfavorable opinion with respect to nexus. However, the examiner did not account for the Veteran's lay statements with respect to onset. As such, the examiner's opinion in that regard is of limited probative value. On balance, and taking into account the totality of the evidence, including the Veteran's in-service noise exposure and his statements and explanations with respect to onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his hearing loss is due to noise exposure during service. Specifically, in a May 2018 submission, he contended that his hearing loss was due to his duties serving in artillery. At the July 2021 hearing, he testified that he first noticed hearing loss in 1967 during service. He also stated that he got an audiology test and positive nexus opinion from a private audiologist in 2019. As an initial matter, the Board notes that the Veteran has a current hearing loss disability for VA purposes, as demonstrated by the May 2015 VA examination. The first element of service connection has therefore been established. Regarding an in-service event, the Board finds that the Veteran was exposed to hazardous noise during service, inasmuch as military personnel records confirm that his principal duties were as a gunner and cannoneer, which is consistent with his reports of frequent exposure to hazardous noise from artillery. The second element of service connection has therefore also been established. As to the nexus, or link, between the Veteran's current hearing loss disability and service, the examiner in May 2015 offered a negative nexus opinion, reasoning that the Veteran's entrance audiogram in July 1966 and his exit audiogram in September 1969 both indicated normal hearing, and that when they were compared, no significant change or decrease in hearing could be observed. The Board notes that for service department examinations conducted prior to January 1, 1967, unless otherwise indicated, VA assumes that audiometric testing was conducted using American Standards Association (ASA) measurements and converts the results of such testing to current International Standards Organization-American National Standards Institute (ISO-ANSI) measurements by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 For service department examinations conducted between January 1, 1967 and December 31, 1970, unless otherwise indicated, VA considers audiometric data to have been recorded in ASA or ISO-ANSI measurements, whichever is most beneficial to the claimant. When the Veteran was examined for entrance into service in July 1966, audiometric testing revealed the following results, in decibels (with the numbers in parentheses representing converted ISO-ANSI measurements): HERTZ 500 1000 2000 3000 4000 6000 Right Ear 5 (20) 0 (10) -5 (5) -- 15 (20) -- Left Ear 0 (15) -5 (5) 0 (10) -- 10 (15) -- When the Veteran was examined for service separation in September 1969, audiometric testing revealed the following results, in decibels (with the numbers in parentheses again representing converted ISO-ANSI measurements): HERTZ 500 1000 2000 3000 4000 6000 Right Ear 0 (15) 0 (10) 0 (10) -- 10 (15) -- Left Ear 5 (20) 5 (15) 0 (20) -- 10 (15) -- The May 2015 VA examiner does not appear to have converted the in-service audiograms from ASA to ISO-ANSI measurements for purposes of comparison. She also did not address the Veteran's acoustic trauma in service, his contention that he first noticed hearing loss in service, or why the apparent upward puretone threshold shifts at 500, 1000, and 2000 Hertz in the left ear, and at 2000 Hertz in the right ear, were not "significant." Nor did the examiner discuss the medical significance, if any, of the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service entrance or separation. The Veteran submitted a statement from a private provider, D.C., M.D., in July 2015. Dr. C. noted the Veteran's report that he had had decreased hearing for many years and that he had noise exposure from artillery during service. He opined that it was very likely that the Veteran's military sound exposure early in life played a substantial portion of the role in his current hearing loss, and that it could not be refuted as a possibility. The Veteran also submitted a November 2021 examination report and statement from a private audiologist, T.V.E., in December 2021. The audiologist noted the Veteran's report that he had been exposed to noises such as explosions, artillery rounds, grenades, mortars, helicopters, and airplanes during service; noted the Veteran's complaint that he had had hearing loss since 1968; and opined that it was at least as likely as not that the Veteran's hearing loss was due to or caused by military noise exposure. While clearly supportive of the Veteran's claim, the Board finds that the July 2015 and November 2021 opinions are insufficient to support an award of service connection. It does not appear that either examiner reviewed the Veteran's STRs, which, as noted, include specific audiometric scores recorded during service. Dr. C. also expressed his opinion in somewhat equivocal terms, indicating that the link between the Veteran's current hearing loss and his in-service noise exposure might be merely a possibility. In light of the above, the Board finds that an addendum opinion is warranted, with consideration of the July 2015 and November 2021 private opinions. The Board also notes that the claims file does not contain any records or opinions from a private audiologist in 2019. This matter is REMANDED for the following action: 1. Contact the Veteran and invite him to submit any records or opinion(s) from a private audiologist dated in 2019 that may be in his possession. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who offered an opinion with respect to the etiology of the Veteran's hearing loss in May 2015. The examiner should be asked to review the expanded record and provide an addendum opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss had its onset in, or is otherwise attributable to, service, to include as due to in-service exposure to noise. In rendering the requested opinion, the examiner should consider that for service department examinations conducted prior to January 1, 1967, the Board ordinarily assumes that audiometric testing was conducted using ASA measurements and converts the results of such testing to current ISO-ANSI measurements by adding between 5 and 15 decibels to the recorded data. The examiner should also consider that for service department examinations conducted between January 1, 1967 and December 31, 1970, unless otherwise indicated, the Board considers audiometric data to have been recorded in ASA or ISO-ANSI measurements, whichever is most beneficial to the claimant. Applying the conversion to the audiometric data in the reports of the Veteran's service entrance and separation examinations yields the results set out in parentheses above, at pages 6 and 7. In formulating her opinion, the examiner should consider that the Veteran's exposure to acoustic trauma during service has been conceded. She should also consider the July 2015 and November 2021 private medical opinions, as well as the Veteran's contention that he first noticed hearing loss during service. If it is determined that the apparent upward puretone threshold shifts at 500, 1000, and 2000 Hertz in the left ear, and at 2000 Hertz in the right ear, are not medically significant, the examiner should explain the basis for that conclusion. The examiner should also address the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service entrance or separation. The examiner should specifically discuss whether, in the absence of audiometric data at 3000 Hertz, it is possible to determine whether the Veteran's hearing was normal at that frequency at the time of separation, and whether it is possible to determine whether any threshold shifts occurred at that frequency during service. If the May 2015 examiner is no longer employed by VA or is otherwise unable to provide the opinions requested, arrange to obtain the requested information from another qualified examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.