Citation Nr: 21042129 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-00 575 DATE: July 12, 2021 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for right knee arthritis is denied. Service connection for left knee arthritis is denied. Service connection for diabetes mellitus type II is denied. Service connection for coronary artery disease (CAD) is denied. Service connection for a lymph node or thyroid disorder, to include Hodgkin's disease, is denied. Service connection for a dental disorder for compensation purposes is denied. Service connection for a disorder manifested by dizziness is denied. Secondary service connection for a gastrointestinal disorder as due to a lymph node or thyroid disorder or a lower jaw disorder is denied. Secondary service connection for muscle tension dysphonia or neck swelling as due to a lymph node or thyroid disorder or a lower jaw disorder is denied. REMANDED Service connection for a dental disorder for treatment purposes is remanded. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents or hazardous gas during service. 2. The Veteran was exposed to acoustic trauma (loud noise) during service. 3. The current disabilities include right and left ear hearing loss, arthritis of the knees, diabetes mellitus type II, and CAD. 4. There was no hearing, knee, endocrine, or cardiovascular injury or disease during service. 5. Symptoms of hearing loss, arthritis of the knees, diabetes, and CAD were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 6. Bilateral hearing loss, a right and left knee disorder, diabetes, and CAD did not have their onset during service and are not otherwise related to service. 7. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a current lymph node or thyroid disorder, Hodgkin's disease, a dental disorder, and/or a disorder manifested by dizziness. 8. There is no service-connected lymph node, thyroid, and/or dental disorder upon which secondary service connection for a gastrointestinal disorder, a muscle tension dysphonia disorder, and/or a neck swelling disorder may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385. 3. Right knee arthritis was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 4. Left knee arthritis was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 5. Diabetes mellitus was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 6. Coronary artery disease was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 7. The criteria for service connection for a lymph node or thyroid disorder, to include Hodgkin's disease, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 8. The criteria for service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 9. The criteria for service connection for a disorder manifested by dizziness have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 10. The criteria for secondary service connection for a gastrointestinal disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 11. The criteria for secondary service connection for a muscle tension dysphonia disorder and/or a neck swelling disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1971 to June 1975. In August 2019, in pertinent part, the Board remanded the issues on appeal for initial review of evidence by the Agency of Original (AOJ) and for VA examinations. VA examination reports, VA medical opinions, and March 2021 and April 2021 supplemental statements of the case have been associated with the record; therefore, an additional remand to comply with the August 2019 remand directives is not required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Service Connection for Right Ear Hearing Loss 2. Service Connection for Left Ear Hearing Loss 3. Service Connection for Right Knee Arthritis 4. Service Connection for Left Knee Arthritis 5. Service Connection for Diabetes Mellitus 6. Service Connection for CAD Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Bilateral sensorineural hearing loss, arthritis, diabetes mellitus, and CAD are considered chronic diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that various disorders are related to service, to include herbicide exposure and exposure to hazardous gas during service. In a June 2010 statement, the Veteran wrote that Hodgkin's disease was related to herbicide exposure during service caused by repairing contaminated weed spraying equipment. In an August 2010 statement, the Veteran wrote that certain disorders were related to hazardous gas exposure while testing gas masks in a gas chamber. The Veteran also contends generally that hearing loss is related to loud noise exposure during service. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. See February 2020 VA audiometric examination report. In addition, there are current diagnoses of arthritis of both knees, diabetes mellitus (type II), and CAD. See September 2015 VA examination report, VA treatment records. In this case, the herbicide agent presumption under 38 C.F.R. § 3.309(a)(6) is inapplicable as the service personnel records do not reflect service in the Republic of Vietnam during the period when herbicides were being applied, and the Veteran has not contended otherwise. While the Veteran contends that various disorders are related to herbicide exposure during service, the evidence in the service personnel records, to include the service treatment records and DD Form 214, does not suggest exposure to herbicides during service. Under the facts of this case where there is no specific description of how Agent Orange was stored or transported or used, or as to when and how the Veteran might have specifically been in contact with Agent Orange, or how he would have recognized Agent Orange, he Veteran is also not competent to state that he was exposed to Agent Orange during service. In addition, a March 2012 formal finding issued by the Joint Services Records Research Center did not verify herbicide exposure. For these reasons, the Board finds that the weight of the evidence shows no exposure to herbicide agents during service. While the Veteran has alleged that various disorders are related to hazardous gas exposure while testing gas masks in a gas chamber, the Veteran's military occupational specialty was an aerospace ground equipment repairman. See DD Form 214. The service personnel records also do not suggest that the Veteran was exposed to hazardous gas during service. Further, because the Veteran has alleged exposure to hazardous gas during service, it is likely that such exposure would be documented by the Department of Defense or VA. In addition, and as discussed below, the service treatment records, which are complete, do not show any treatment related to hazardous gas exposure. For these reasons, the Board finds that the weight of the evidence shows no exposure to hazardous gas during service. As to service connection for hearing loss, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran was exposed to loud noise (acoustic trauma) while in service. The service personnel records reflect an occupational specialty of aerospace ground equipment repairman. The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of service. 38 U.S.C. § 1154(a). After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a hearing loss, knee, endocrine, or cardiovascular injury or diseases occurred during service, or that chronic symptoms of hearing loss, a knee disorder, diabetes, or CAD were manifested during service. The service treatment records, which are complete, show no relevant reports of injury, complaints, findings, diagnoses, or treatment related to hearing loss, a right knee disorder, diabetes mellitus, or CAD. As discussed below, the September 2015 VA examiner specifically assessed that while the Veteran experienced "minor" left knee pain during service, that left knee arthritis was not diagnosed until approximately 40 years after separation from service and was opined to be likely age-related. The March 1975 service separation examination report reflects the knees, endocrine, and cardiovascular systems were each clinically evaluated as normal. Because the service treatment records are complete, and the Veteran sought treatment for various other symptoms during service, clinical testing including blood tests, pulse, and blood pressure monitoring were conducted during service, the Board finds that hearing loss, a bilateral knee disorder, diabetes mellitus, and CAD are conditions that would have ordinarily been recorded during service had they been present during service. In this case, the service treatment records reflect that the Veteran sought treatment for shoulder pain, back pain, an earache, a head and chest cold, and reported a sore throat. As the service treatment records are complete and show complaints and treatment for other disorders, the Veteran similarly would have reported or complained of hearing loss, knee, endocrine, or cardiovascular disability symptoms, had such occurred during service. Additionally, routine blood tests ("panels") and blood pressure testing, which includes physical pressing on the pulse, would have noted such irregularities had they been present during service. For these reasons, the lay and medical evidence generated contemporaneous to service, which show no in-service hearing, knee, endocrine, or cardiovascular injury or disease and no chronic symptoms of hearing loss, arthritis of the knees, diabetes, or CAD, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of hearing loss, knee, endocrine, or cardiovascular disorder symptoms during service. Accordingly, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The Board next finds that the weight of the evidence shows that symptoms of hearing loss, arthritis of the knees, diabetes, and CAD were not continuous since service, including not to a degree of 10 percent within one year of service separation. The numerous VA and private treatment records reflect that a right and left knee disorder was not manifested until approximately 2015, over 40 years after service separation. A September 2014 VA treatment records reflect the Veteran reported CAD and a March 2016 VA treatment record reflects treatment for diabetes. In addition, the VA and private treatment records do not reflect that the Veteran was diagnosed with hearing loss, diabetes, or CAD within one year of service separation. Considered together with the absence of an in-service hearing, knee, endocrine, or cardiovascular injury or disease or symptoms of hearing loss, bilateral knee arthritis, diabetes, or CAD during service, the 40-year gap between service and the onset and diagnosis of a right and left knee disorder, and a post-service diagnosis of hearing loss, diabetes, and CAD, is one factor that tends to weigh against a finding of continuous symptoms service separation. As the weight of the evidence demonstrates no "continuous" hearing loss, knee disorder, diabetes, or CAD symptoms since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms or symptoms manifested to a degree of 10 percent within one year of service separation are not met. 38 C.F.R. §§ 3.307, 3.309. The Board further finds that the weight of the evidence demonstrates that diabetes and CAD, which each first manifested years after service, are not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which the disorders could be related. As analyzed above, the weight of the evidence shows no endocrine or cardiovascular symptoms during service, that the Veteran did not otherwise sustain an endocrine or cardiovascular injury during service, and that the Veteran did not even experience relevant symptoms of diabetes or CAD during service. In addition, any statement purporting to relate diabetes and CAD to service would be based on the inaccurate factual premise of an in service injury, disease, or event, so would be of no probative value. Regarding direct service connection as to hearing loss, the February 2020 examiner opined that hearing loss was unrelated to service, to include acoustic trauma during service. The February 2020 VA examiner reasoned that hearing loss was first diagnosed many years after separation from service. The February 2020 VA examiner also reasoned that the post-service treatment records reflect that hearing loss is related to post-service occupational exposure as the Social Security Administration (SSA) records reflect normal hearing upon beginning post-service employment as a firefighter with several significant threshold shifts noted by the time of retirement. See SSA records, February 2020 VA examination report. For these reasons, right and left ear hearing loss, which did not manifest until years after and has been attributed to post-service occupational exposure, is not attributable service. As to the right and left knee disorders, the September 2015 VA examiner opined that a right and left knee disorder was not incurred in or caused by service. In support of the medical opinion, the September 2015 VA examiner explained that while the service treatment records reflect treatment for minor left knee pain, the Veteran was not diagnosed with a right or left knee disorder until approximately 40-years after separation from service and that the bilateral knee arthritis was likely age-related. The September 2015 VA examiner has medical expertise, had adequate information on which to base the medical opinion, and provided adequate rationale based on an accurate medical history and known medical principles. For these reasons, the September 2015 VA medical opinion is of significant probative value. For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for hearing loss, a right or left knee disorder, diabetes mellitus, and CAD based on chronic disease presumptions and direct service connection; consequently, the appeal as to these issues must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Service Connection for a Lymph Node or Thyroid Disorder 8. Service Connection for a Dental Disorder for Compensation Purposes 9. Service Connection for Dizziness With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran contends a lymph node or thyroid disorder, to include Hodgkin's disease, is related to gas exposure during service and that a dental disorder is related to in-service jaw surgery. The Veteran also contends that a disorder manifested by dizziness is related to service and/or a service-connected disability. As discussed above, the weight of the evidence shows no exposure to hazardous gas during service. After a review of the evidence, the weight of the evidence demonstrates that the Veteran does not have current diagnoses or functionally impairing disabilities of a lymph node or thyroid disorder, a dental disorder, and/or a disorder manifested by dizziness. As to the claimed lymph node or thyroid disorder, a January 2021 VA examination reports reflect the VA examiner did not discern a current thyroid or lymph node disorder, to include any currently diagnosed Hodgkin's disease. The January 2021 VA examiner noted a 1982 partial thyroidectomy which had resolved without residuals. The January 2021 VA examination reports also reflects that the thyroid lymph nodes were clinically evaluated as normal. Further, at the conclusion of the examinations, the January 2021 VA examiner did not diagnosis any thyroid or lymph node disorder. The evidence also does not show thyroid or lymph node pain severe enough to result in functional impairment. See VA and private treatment records; Saunders v. Wilkie, 886 F.3d 1356 (2018). The January 2021 VA examination reports and VA medical opinions are highly probative and are adequately based on objective findings as shown by the record. The VA examiner considered a complete and accurate history of the claimed disabilities as provided through review of the record. As to the claimed dental disorder and disorder manifested by dizziness, the Board finds that the weight of the evidence is against the finding that the Veteran has a current dental or dizziness disorder, either by diagnosis or by functional impairment, including based on lay evidence reports. See VA and private treatment records; Saunders, 886 F.3d 1356. The competent evidence of record does not demonstrate a current diagnosis of a dental or dizziness disorder, and the VA and private treatment records do not demonstrate otherwise. Based on the foregoing, the Board finds the weight of the evidence demonstrates the Veteran does not have a current thyroid or lymph node disorder, to include any currently diagnosed Hodgkin's disease, a dental disorder, and/or a disorder manifested by dizziness; therefore, the claims for service connection must be denied. 10. Secondary Service Connection for a Gastrointestinal Disorder 11. Secondary Service connection for Muscle Tension Dysphonia or Neck Swelling The Veteran contends that he developed a gastrointestinal disorder and a muscle tension/neck swelling disorder due to medications he was prescribed following surgeries for the lower jaw and thyroid/lymph nodes. See August 2010 statement. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310. As discussed above, the evidence of record reflects the Veteran underwent a thyroidectomy in the early 1980s; however, the first evidence of a gastrointestinal disorder arose in the early 2000s, approximately 20-years after the thyroidectomy. In addition, a November 2013 VA treatment record reflects slight muscle tension dysphonia, a diagnosis first occurring approximately 31-years after the thyroidectomy. In the instant decision, the Board is denying service connection for a thyroid or lymph node disorder, to include Hodgkin's disease, as well as service connection for a dental disorder. As such, secondary service connection (See 38 C.F.R. § 3.310) for a gastrointestinal disorder and/or muscle tension/neck swelling is not warranted as a matter of law, whether or not the disorders were caused by surgeries for the lower jaw and/or the thyroid/lymph nodes because there is no primary service-connected disability upon which secondary service connection may be granted. As the lower jaw and thyroid/lymph disorders that may have caused or aggravated a gastrointestinal disorder and/or a muscle tension/neck swelling disorder is not a service-connected disability, service connection on a secondary basis must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 12. Service Connection for a Dental Disorder for Treatment Purposes During the pendency of this appeal, the regulations applicable to service connection for dental disorders for dental treatment purposes were revised in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental disorder for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). Based upon a review of the record, it does not appear that VHA made a determination regarding the Veteran's eligibility for dental treatment; therefore, the Board finds that a remand is necessary so that VHA may adjudicate the issue of entitlement to service connection for dental treatment purposes in the first instance. The matter is REMANDED for the following action: 1. Provide Veterans Claims Assistance Act of 2000 (VCAA) notice for the issue of service connection for a noncompensable dental disorder for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161, including the relevant dental regulations outlining the requirements to receive service connection for dental treatment purposes. 2. After obtaining any additional evidence pertinent to the issue on appeal, as well as developing the claim in any matter deemed appropriate, VHA should adjudicate Class eligibility in the first instance under 38 C.F.R. § 3.381 (effective February 29, 2012). See 38 C.F.R. § 17.161. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.