Citation Nr: 21012514 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-00 261A DATE: March 4, 2021 ORDER Entitlement to service connection for bradycardia, to include as due to herbicide exposure, is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Veteran’s bradycardia, to include as due to herbicide exposure, is not ischemic heart disease and was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The lay and medical evidence is at least in relative equipoise as to whether the Veteran’s current tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bradycardia, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1971, including in the Republic of Vietnam from September 1970 to April 1971, in the U.S. Army. He also had additional unverified U.S. Army National Guard service. A videoconference Board hearing was held in February 2020 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In June 2020, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. Specifically, the Board directed the AOJ to conduct any appropriate development to obtain the Veteran’s updated VA and private treatment records, to include any VA examination(s) for bilateral hearing loss dated in November 2018. While the Veteran’s VA medical records were associated with the record, the audiogram related to the Veteran’s hearing loss examination in November 2018 was not associated with the record. The Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Service Connection Generally, 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. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bradycardia, to include as due to herbicide exposure, The Veteran contends that that his bradycardia is due to his military service. Alternatively, he contends that his bradycardia is the result of herbicide exposure due to service in the Republic of Vietnam. The question for the Board is whether the Veteran has a current heart disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of bradycardia, and in-service exposure to herbicide is presumed, the preponderance of the evidence weighs against finding that the bradycardia began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, supra. 38 C.F.R. § 3.303(a), (d); 3.307 (6)(ii); 3.309 (e). As the Veteran’s exposure to herbicides is presumed, if ischemic heart disease became manifest to a degree of 10 percent or more at any time after service, service connection would be warranted. 38 C.F.R. §§ 3.307(6)(ii); 3.309(e). The Board notes that bradycardia is not a listed condition. The evidence shows that the Veteran does not have ischemic heart disease. As a result, presumptive service connection is not warranted. The report of an August 2016 VA examination state that the Veteran had a diagnosis of bradycardia and did not have any heart condition that qualified as ischemic heart disease. The September 2020 VA examiner further noted that the Veteran’s bradycardia did not manifest until decades after service. A review of all available records did not reveal ischemic heart disease. The examiner noted the Veteran did not begin experiencing symptoms until 2014. The September 2020 VA examiner opined that it was less likely as not (less than 50 percent probability) that the Veteran had ischemic heart disease or that the bradycardia was incurred in, related to, or caused by herbicide agent exposure or other events in the Veteran’s service. As rationale, the September 2020 VA examiner indicated that there was no evidence of sinus bradycardia while in service. The examiner noted that the Veteran’s heart rates at separation, during a National Guard exam in 2002, and a cardiovascular screening in October 2003 were all normal. The examiner further noted that the Veteran did not have any symptoms until 40 years post-service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds it significant that there is no medical opinion to the contrary of the examiner’s opinion. While the Veteran believes his heart condition is related to an in-service injury, event, or disease, including herbicide exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2020 VA examiner opinion. Thus, the Board finds that the Veteran is not entitled to service connection for bradycardia. 2. Entitlement to service connection for tinnitus In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran reported having tinnitus during the November 2018 VA audiological examination. This evidence sufficiently established the presence of the currently claimed disability, tinnitus. The Veteran has asserted that his tinnitus began during his period of military service. During the February 2020 hearing, the Veteran testified that he was exposed to significant noise while serving as an avionics mechanic out on the flight line in the Republic of Vietnam. The Veteran reported he began experiencing tinnitus in 1969 while still in service and was not provided adequate hearing protection. The Veteran is competent to report the events that occurred during service and he has provided a consistent report of the circumstances of his in-service noise exposure, as well as the onset and nature of his tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). His DD Form 214 also confirms that he was an aviation mechanic, which corroborates his report of duties that exposed him to significant noise during service. The Board also notes that his report of in-service noise exposure appears to be consistent with the places, types, and circumstances of the duties described by the Veteran. See 38 U.S.C. § 1154 (a) (due consideration must be given to the places, types, and circumstances of a veteran’s service). Therefore, the Board finds the Veteran’s assertions regarding his in-service noise exposure and the onset and nature of his tinnitus to be competent and credible lay evidence of such. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board finds that the evidence is, at least, in relative equipoise. In August 2020, a VA examiner opined that the Veteran’s tinnitus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted the Veteran had not sought treatment or reported tinnitus until a 2018 audiological evaluation. The examiner noted the Veteran had reported experiencing symptoms of tinnitus “for many years,” but indicated that even if “for many years” was 20 years, that would still be 27 years after service. The Board notes that the examiner did not address the Veteran’s assertion that he began experiencing tinnitus in service. While the August 2020 VA opinion is considered competent medical evidence, the Board finds the opinion does not preclude an award of benefits, particularly given that it is based on the lack of medical evidence showing complaints or treatment for tinnitus for several years after service. While there are no medical records documenting complaints or treatment for tinnitus until November 2018, the Court of Appeals for Veterans Claims has held that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” See Layno v. Brown, 6 Vet. App. 465 (1994); Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Board does note that the Veteran denies any decreased hearing or tinnitus in private cardiology notes from 2017, 2018, 2019, and 2020. However, the Board finds that these are not probative as they were likely boilerplate and not related to the condition for which the Veteran was seeking treatment. As noted, the Veteran is competent to report symptoms such as tinnitus because this requires only personal knowledge as it comes to him through his senses. The Board also acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). The Board again notes that the Veteran has provided a generally consistent account regarding the continued nature of his tinnitus since service and the Board has no reason to doubt the Veteran’s report. Accordingly, the Board finds that his statement regarding chronicity of tinnitus since his military service to be credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). In these circumstances, the Board finds that the competent and credible lay and medical evidence of record gives rise to a reasonable doubt as to whether the Veteran’s tinnitus is related to his military service. As such doubt is resolved in favor of the Veteran, the Board is satisfied that the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for bilateral hearing loss. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specfically, the Board directed the AOJ to obtain a November 2018 audiological examination. The Veteran’s VA medical records were associated with the record, but the audiogram from the November 2018 audiological examination was not associated with the record. Further development is required to obtain the audiogram from the November 2018 VA audiological examination. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated VA and private treatment records, to specifically include the audiogram associated with a VA audiological evaluation that occurred in November 2018. 2. Thereafter, forward the claims file and a copy of this REMAND to an appropriate clinician for opinions concerning the nature and etiology of the Veteran’s bilateral hearing loss. The decision on whether to schedule the Veteran for another examination is left to the discretion of the clinician providing the requested opinions. Based on a review of the claims file, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss, if diagnosed, is related to active service or any incident of service, including as due to in-service exposure to significant acoustic trauma. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the Veteran was exposed to significant in-service acoustic trauma. The clinician also is asked not to review or rely upon the April 2015 VA hearing loss DBQ in preparing his or her own opinions. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.