Citation Nr: 21028830 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-50 374A DATE: May 12, 2021 ORDER Service connection for coronary artery disease is granted. REMANDED Service connection for hearing loss. FINDING OF FACT The Veteran is diagnosed with an ischemic heart disease and he was exposed to a covered herbicide in or near the Korean Demilitarized Zone between September 1, 1967, and August 31, 1971. CONCLUSION OF LAW The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1970. The case is on appeal from a June 2015 rating decision. In March 2021, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for ischemic heart disease. The Veteran contends that he has a heart condition due to Agent Orange exposure during service. He testified at his Board hearing that he was assigned to a unit in Korea, where his duties took him near the Demilitarized Zone (DMZ). Board Hr'g Tr. 3. He was responsible for sanitary inspections for the furthermost north divisions at the DMZ. Board Hr'g Tr. 3-4. He could actually see North Korea. Board Hr'g Tr. 4. He was also the physician for an orphanage in Paju next to the DMZ. Board Hr'g Tr. 4. He also spent time in Camp Casey and was transferred to Camp McDonald. Board Hr'g Tr. 4. He explained that he did not have any other risk factors for heart disease. Board Hr'g Tr. 4. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service 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)(iv). For veterans with herbicide exposure, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease. 38 C.F.R. § 3.309(e). 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). Id. B. Discussion As to a current disability, a private treatment record from October 1999 shows a current diagnosis of three vessel coronary artery bypass graft due to coronary artery disease. The disease is consistent with ischemic heart disease as defined in 38 C.F.R. § 3.309(e). Thus, the primary question becomes whether the Veteran had Agent Orange exposure during service. The Veteran's official service department records show that he was in Korea from October 1968 to October 1969. According to a July 1969 Performance Evaluation, he was assigned to the 1071st Medical Service Squadron, Tongduchon-ni, Korea (Hq Comd, USAF). The Performance Evaluation states that he was an Infantry Division Artillery Staff Surgeon, who conducted daily sick call, conducted sanitation inspections, and supervised assigned medical personnel. It further states that he voluntarily performed duty several nights a month at a nearby Army Hospital and voluntarily devoted his own time to treating Korean nationals. The Board finds that this Performance Evaluation tends to support the Veteran's assertions. Consistent with his testimony, it confirms that he was involved in sanitation inspections and treated Korean nationals. In fact, the claims file includes an adoption decree showing that he adopted a child from an address near the DMZ. This further supports his assertions that he was the physician for an orphanage next to the DMZ. Hence, consistent with these service records, the Board finds the Veteran's testimony consistent with the time, places, and circumstances of his service. In attempting to corroborate the Veteran's assertions, the RO sent a request to the service department, which responded in August 2017, as follows: We reviewed the 1968 unit history submitted by the 176th Replacement Company, 38th Replacement Battalion and the available 1968 United States Army Station List. The Station List indicates that the unit was located at Ascom, South Korea. We also reviewed the 1968 Chronology submitted by the 8th United States Army. The records do not mention any Surgeons going to the Demilitarized Zone (DMZ) to conduct sanitation inspections. The records do not document the use, storage, spraying, or transporting of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the 176th Replacement Company, 38thReplacement Battalion unit members along the DMZ. The Board finds that this does not contradict the Veteran's testimony or the corroborating service records. It simply posits an absence of documentary evidence confirming the Veteran's assertions. To this extent, it is not clear that the records reviewed were the type regularly conducted for this purpose and would have recorded these events. Hence, the service department's response is not affirmative evidence rebutting the positive evidence. See AZ v. Shinseki, 731 F.3d 1303, 1315-18, n.13 (Fed. Cir. 2013); Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019); Fed. R. Evid. 803(6), (7). As such, the evidence tends to place the Veteran in or near the Korean DMZ between September 1, 1967, and August 31, 1971. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hence, exposure to a covered herbicide agent is presumed. See 38 C.F.R. § 3.307(a)(6)(iv). Given this evidence, and the Board will presume for these purposes that the Veteran's coronary artery manifested to at least 10 percent, service connection for coronary artery disease is warranted.. REASONS FOR REMAND Service connection for hearing loss. The Veteran maintains that he has a hearing loss due to noise exposure during service. He testified at his Board hearing that his hearing loss actually occurred at the DMZ in Korea. Board Hr'g Tr. 6. He was on inspection for use of appropriate hearing devices for soldiers who were manning the 155 guns. Board Hr'g Tr. 6. He saw that everybody on the firing line had the protective equipment on their ears when the lieutenant looked at him, gave a smile, and indicated to the troop to go ahead and fire the gun. Board Hr'g Tr. 6. He was deaf for four days afterwards; he did not hear anything at all. Board Hr'g Tr. 6. He did not seek medical attention and did not put anything on his record because he knew that there was nothing really that could be done. Board Hr'g Tr. 6. Then at service separation, the examining physician informed him that he had a significant hearing loss. Board Hr'g Tr. 6. He did not think he would need the financial help being a doctor, so he did not apply for service connection. Board Hr'g Tr. 6. The Veteran also testified that he had absolutely no hearing problems at service entrance. Board Hr'g Tr. 8. Rather, it developed during service with the sudden hearing loss complete. Board Hr'g Tr. 8. The Veteran previously underwent a VA examination in June 2015. Audiometric testing revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 45 50 35 LEFT 45 45 45 45 35 Speech recognition scores were 84 percent right ear and 96 percent left ear. The examiner diagnosed sensorineural hearing loss, and opined that the condition was not at least as likely as not related to service. The VA examiner noted that the enlistment audiogram in September 1966 showed hearing within normal limits except for a mild hearing loss at 8000 Hz in the left ear. The examiner observed that this hearing loss was noted to be possibly due to acoustic trauma. The examiner then noted audiologic testing during service from February 1968 as showing hearing within normal limits except for a mild hearing loss at 8000 Hz. Finally, the examiner noted testing at separation in August 1970 as within normal limits bilaterally with a notation of hearing loss in the past. The examiner reasoned that a comparison of the separation audiologic evaluation to the enlistment audiologic evaluation indicated that there was not a significant threshold shift (greater than 10 decibels) at .5-4 kHz both ears. The examiner also found no evidence that there was an aggravation of pre-existing hearing loss that was permanently increased beyond the natural progression in service for the left ear. The examiner cited in support a September 2005 Institute of Medicine Report titled Noise and Military Service: Implications for Hearing Loss and Tinnitus, Consensus Statement on Noise and Hearing Loss. The examiner found insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Citing the study, the examiner reasoned that, although definitive studies have not been performed, it is unlikely that delayed effects occur. The Board currently finds that this VA examiner's opinion is insufficient to fully resolve the complex medical questions raised by the claim. First, the examiner did not appear to account for the change in audiometric standards during the time of the Veteran's service. Service department audiometric test results prior to November 1, 1967, were reported in standards set forth by the American Standards Association (ASA), whereas audiometric test results since that time are reported in standards set forth by the International Standards Organization-the American National Standards Institute (ISO/ANSI). Due to the changing standards, audiograms conducted according to ASA standards must be converted to ISO/ANSI standards for comparison. With this in mind, the Veteran's September 1966 entrance examination specifies that the ASA standard was used. His hearing thresholds upon audiometer testing were as follows (with the results converted to ISO-ANSI in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 0 (10) 0 (10) 10 (15) LEFT 10 (25) 5 (15) 0 (10) 0 (10) 0 (5) The VA examiner also cited February 1968 audiologic testing, which again specified that the ASA standard was used. It showed results as follows (with the results converted to ISO-ANSI in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) -10 (0) -10 (0) -5 (0) LEFT 5 (20) 5 (15) -5 (5) -10 (0) -10 (-5) Finally, the VA examiner relied on the May 1970 service separation examination. It does not identify the standard used. Based on the date of the examination, however, it is assumed the ISO/ANSI standard was used. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 -- 10 LEFT 5 5 5 -- 10 By not acknowledging the changed standards, the Board is unable to determine if the VA examiner accounted for the converted results. Ostensibly, according the VA examiner's reasoning, the converted results would not appear to materially alter the VA examiner's ultimate conclusion as they do not indicate a shift of greater than 10 decibels. But this is not certain. Relatedly, the examiner found no evidence that a pre-existing hearing loss was aggravated by service. The VA examiner cited results at 8000 Hz, which is not used for purposes of determining whether a hearing impairment preexisted service. See 38 C.F.R. § 3.385. Moreover, the examiner noted a mild hearing loss. The examination shows an auditory threshold of 35 decibels at 8000 Hz. By law, this cannot be considered a preexisting hearing loss as the auditory thresholds were not 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz; the auditory threshold at 8000 Hz is not relevant to this inquiry. See 38 C.F.R. § 3.385. Hence, the Veteran is entitled to the presumption of soundness under 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). See McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). There should not have been consideration of aggravation as there is not clear and unmistakable evidence of a preexisting hearing loss as defined in § 3.385. By addressing aggravation, the VA examiner appears to have misunderstood or misinterpreted the exact medical question at issue here. Finally, the VA examiner did not account for the Veteran's testimony that he first experienced a hearing loss during service. This testimony was not in the record before when the examination was conducted, but it also does not appear that the examiner attempted to elicit this information. Overall, in light of these three aspects, the Board finds the June 2015 VA examiner's opinion insufficient to resolve the appeal. Hence, a new opinion on remand is warranted. The Board is mindful that the Veteran is a retired cardiologist and believes his hearing loss is related to service. Notwithstanding his respected medical background, there is no indication that he has a background, training, or experience specifically in audiological medicine. As such, the Board finds that a new opinion remains warranted. See, e.g., Wise v. Shinseki, 26 Vet. App. 517 (2014). The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's hearing loss. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address whether the Veteran's current sensorineural hearing loss at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. The examiner should assume, for purpose of answering this question, that the Veteran did NOT have a preexisting hearing loss. (An answer as to aggravation is not needed.) The examiner must account for the change in standards during the Veteran's service from the American Standards Association (ASA) to the International Standards Organization-the American National Standards Institute (ISO/ANSI). If, in answering these questions, the examiner relies on the Institute of Medicine (IOM) 2005 study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, the examiner must explain how the qualifying and contradictory statements in the IOM report impact the examiner's ultimate conclusion as to whether the Veteran's hearing loss is related to service. In answering these questions, the examiner must consider the statements from the Veteran indicating that symptoms of hearing loss started during service with an episode of deafness when cannons fired next to him without hearing protection. The examiner is asked to explain why his statements make it more or less likely that a current hearing loss started during or is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.