Citation Nr: A21020157 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190304-4815 DATE: December 16, 2021 ORDER Service connection for a lumbar strain (lumbar spine disability) is denied. Service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as secondary to exposure to herbicides, including Agent Orange, is remanded. Entitlement to service connection for diabetes mellitus, type 2 (type 2 diabetes), to include as secondary to exposure to herbicides, including Agent Orange, is remanded. Entitlement to an increased, compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The probative evidence does not show that the Veteran's lumbar strain was either incurred in active service, or is the result of his active military service. 2. For VA compensation purposes, the Veteran does not have right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1965 to June 1967, with additional periods of service, to include active duty for training (ACDUTRA), in the United States Naval Reserve. The rating decision on appeal was issued in January 2019. After the Veteran opted for an appeal of his claims through the Rapid Appeals Modernized Program, he opted for a review of his appeal via the Hearing docket lane, in a March 2019 VA Form 10182: Notice of Disagreement form. Accordingly, the Veteran's testified at a Board hearing before a Veterans law judge, in August 2020. Therefore, the Board may only consider the evidence of record at the time of the January 2019 rating decision on appeal, any evidence that the Veteran submitted at his August 2020 Board hearing, or any evidence submitted within 90 days following this hearing. 38 C.F.R. § 20.302(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish 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). 1. Lumbar Spine Disability At his August 2020 Board hearing, the Veteran testified that he has had a lower back condition since military service, and that he had already started complaining of lower back problems while he was on active duty. The Veteran explained that the onset of his back condition occurred when he worked as a post office carrier, in which he was taking two bags of mail out to a flight deck, to be loaded on to an airplane, he climbed up a ladder, turned slightly sideways and was unable to stop, and consequently, he fell all the way down to the ground, on the deck. Further, he testified that since his military service, he has treated his back problems with over the counter medication, such as, for example, Advil. He clarified that although no doctor identified a medical problem, he mentioned having back problems to his doctor and nothing was done, but instead, the doctor told him to take over-the-counter Ibuprofen or Advil. See August 2020 Board Hearing Transcript. In reviewing service treatment records from both active duty and ACDUTRA service periods, medical history and examination reports (including among others, enlistment and separation history and examination reports), consistently indicate that the Veteran did not have a history of any back-related complaints, conditions, or treatment, despite a history of other unrelated conditions noted. Although an October 1965 in-service treatment note indicates that the Veteran reported having back pain, no additional or other follow up complaints, treatments, diagnoses, or recurrent back-related conditions are noted in STRs. Thus, although the Board does not question the Veteran's above-mentioned report of his in-service incident, service treatment records, especially including his separation examination report, suggest his in-service back pain/injury resolved by the time he separated from active service in the Navy, and prior to his enlistment into the Navy Reserve. In August 2017, the Veteran was afforded a VA examination for back conditions. At this examination, a VA examiner diagnosed the Veteran's back condition as a lumbosacral strain (lumbar strain). The VA examiner opined that the Veteran's lumbar strain was less likely than not incurred in, or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained that the Veteran's in-service back condition was only acute, and that there is no evidence of chronicity of care. See August 2017 VA Opinion. As a general rule, an opinion that is primarily based on the absence of evidence of an in-service condition, treatment, or a diagnosis is an insufficient basis for finding that a veteran's active military service is not related to a current disability; and thus, such a finding is not necessarily dispositive of a service connection claim. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case however, the Veteran has not submitted any other probative evidence for the Board to consider and determine whether his current lumbar spine disability is related to his active service. Nonetheless, at his hearing, the Veteran asserted that the Regional Office denied this claim on the basis of a lack of chronicity of care, and that it did not account for his lay statements that "he has been suffering with a medical condition since military service." See August 2020 Board Hearing Transcript. In this case, however, these lay statements are insufficient to establish a nexus between his current disability and his in-service incident and/or injury. He has not provided any additional or supporting evidence, such as, for example, lay/buddy statements from witnesses, or evidence of a back condition from medical treatment records that date back to a period that is proximate to, or shortly after his separation from service. Thus, as the Board finds that the preponderance of the evidence is against this claim, service connection for a lumbar spine disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right Ear Hearing Loss The Veteran asserts entitlement to service connection for right ear hearing loss. In particular, he suggests that his service-connected left ear hearing loss impacts his hearing ability in the right ear. See August 2020 Board Hearing Transcript. As it pertains to service connection claims for hearing loss, however, impaired hearing, for VA purposes, shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In August 2017, the Veteran was afforded a VA examination for hearing loss. In the corresponding, VA examination report, audiometric results reflect Puretone thresholds for the right ear as 25 decibels (dB) at 500 Hertz (Hz); 25dB at 1000Hz; 25dB at 2000Hz; 25dB at 3000Hz; and 25dB at 4000Hz. Additionally, speech discrimination for the right ear was at 98 percent. Thus, these audiometric results show that there is no right ear hearing loss, for VA disability compensation purposes. Further, no evidence of right ear hearing loss is shown in post-service treatment records, for VA purposes, under 38 C.F.R. § 3.385. Thus, as there is no evidence of right ear hearing loss, for VA compensation purposes, this claim for service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223,225 (1992) (holding that there is no valid claim without evidence of a current disability). REASONS FOR REMAND The Board regrets further delay, as an additional developments are required before the Board may render a fully-informed decision on the remaining issues on appeal. With respect to the service connection claims for CAD and type 2 diabetes, a remand is required for the Regional Office to correct a duty to assist error, as it failed to render a contemporaneous VA examination for the Veteran's left ear hearing loss; and additionally, to complete its duty to assist with respect to the Veteran's CAD and type 2 diabetes claims that are based on herbicides exposure, due to new, updated VA regulation that became effective after the January 2019 rating decision, which expanded the scope of qualifying active service in the Republic of Vietnam. 1. Left Ear Hearing Loss The Veteran asserts that since he submitted his service connection claim for left ear hearing loss, his hearing has worsened to the point where he feels as though he should be entitled to a higher rating. See August 2020 Board Hearing Transcript. The last time the Veteran was afforded a VA examination for hearing loss was in August 2017. Thus, as it has been at least four years since the Veteran was afforded a VA examination, a remand is required for a new, contemporaneous VA examination on the current severity of the Veteran's left ear hearing loss. 2. CAD & Type 2 Diabetes The Veteran asserts entitlement to service connection for his CAD and Type 2 diabetes due to an exposure to herbicides, including Agent Orange, during his active service. Although, he does not assert that he was physically on the ground in the Republic of Vietnam, he asserts, however, that in June 1965, he was off the coastal shores of Vietnam when he served aboard the aircraft carrier, the U.S.S. Enterprise. See August 2020 Board Hearing Transcript. Pertinent to this assertion, in Procopio v. Wilkie, 913 F.3d 1371, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") expanded the scope of in-service presence in Vietnam, for purposes of herbicides exposure, to within a 12-nautical mile radius of the territorial sea of the Republic of Vietnam, during the Vietnam War. Accordingly, the Blue Water Navy Act of 2019 codified the Federal Court's holding in Procopio to award disability benefits to Veterans who served in Vietnam, by expanding the definition of "service in Vietnam" to encompass service in the territorial sea, extending 12 nautical miles from the shores off Vietnam and off Cambodia. Although military personnel records confirm the Veteran's service aboard the U.S.S. Enterprise (CVA(N) 65) during the Vietnam War, it is not discernable as to whether presumptive exposure to herbicides may be conceded because there is no indication as to whether the U.S.S. Enterprise was withing the 12-nautical mile radius of the territorial sea of Vietnam at any time during the Veteran's active service. Therefore, a remand is required for additional development, and specifically, for the Regional Office to undertake efforts to determine whether the U.S.S. Enterprise was within the 12-nautical mile radius of Vietnam's territorial sea. The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or any pertinent source that may have the requisite information, to determine whether the U.S.S. Enterprise (CVA(N) 65) was within the 12-nautical mile radius of the territorial sea of the Republic of Vietnam during the Veteran's period of active service on board. 2. Also, schedule the Veteran for a new VA examination to determine the current severity of his left ear hearing loss. In providing a VA examination report, the VA examiner should use the appropriate disability benefits questionnaire (DBQ) form for hearing loss. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt, 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.