Citation Nr: 22055893 Decision Date: 10/03/22 Archive Date: 10/03/22 DOCKET NO. 17-25 690 DATE: October 3, 2022 ORDER Entitlement to service connection for a heart disorder is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's current heart disorder began during his active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 5107 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2016 and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2016 rating decision declined to reopen the Veteran's claim for service connection fora heart disability. The April 2017 rating decision denied service connection for bilateral hearing loss and tinnitus. This appeal was previously before the Board in November 2021, at which time it included the issues of entitlement to service connection for a left knee disorder, a left ankle disorder, and a sinus disorder. In subsequent a March 2022 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for left knee osteoarthritis, left ankle osteoarthritis, and chronic sinusitis. This represents a full grant of the benefits sought on appeal as to those issues; therefore, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection The Veteran claims entitlement to service connection for a heart disorder as a direct result of his military service. Specifically, the Veteran contends that his current heart diagnoses are directly related to the chest pain he experienced in service, and that his in-service symptoms continued thereafter. See December 2009 VA Form 21-4138, Statement in Support of Claim. 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A presumption exists for veterans who served in Republic of Vietnam during the Vietnam era where certain diseases associated with exposure to herbicide agents used in support of military operations in the Republic of Vietnam will be considered to have been incurred in service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Specifically, presumptive service connection is warranted for certain diseases if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Board notes that the Veteran's acute, subacute, or old myocardial infarction; and arteriosclerotic heart disease (coronary artery disease) are listed as diseases that are presumptively associated with exposure to herbicide agents. Id. However, as will be explained below, presumptive service connection is not warranted. The question for the Board is whether the Veteran has a current 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 current diagnoses of acute, subacute, or old myocardial infarction; and arteriosclerotic heart disease (coronary artery disease); and the Veteran is competent to report experiencing chest pain during service, the evidence of record persuasively weighs against finding that the Veteran's heart disability began during service or is otherwise related to an in-service injury, event, or disease. Moreover, presumptive service connection is not warranted. First, with regard to presumptive service connection due to herbicidal agents, the Board notes that the December 2021 VA examination report noted the Veteran's claim that he was exposed to gunfire while serving in Vietnam. Here, despite the Veteran's claim, however, the weight of the probative evidence of record demonstrates that the Veteran did not service in the Republic of Vietnam. First, his DD Form 214 notes that he had no foreign service. Moreover, military personnel records do not list any foreign service. Thus, the Veteran is not entitled to the presumption of exposure to herbicide agents, as service in the Republic of Vietnam has not been demonstrated. VA and private treatment records show the Veteran was not diagnosed with a myocardial infarction and/or arteriosclerotic heart disease until 2003, approximately three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of chest pain during and following service, he is not competent to provide determine that his chest pain during service was a manifestation of an underlying heart disorder that ultimately led to his current-diagnosed myocardial infarction and arteriosclerotic heart disease. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In connection with the November 2021 remand, the Veteran underwent a VA examination in February 2022, and he was diagnosed with acute, subacute, or old myocardial infarction and arteriosclerotic heart disease (coronary artery disease). Ultimately, the examiner opined that it was less likely than not that the Veteran's heart disability had its onset during, or is otherwise related to, his military service. The examiner reasoned that the Veteran's heart disorder started after his military service, that there were no service treatment records showing complaints of chest or abnormal heart condition. The examiner also noted that the Veteran's separation examination did not identify any heart and/or vascular system complaints. In May 2022, an addendum opinion was obtained, and the opinion provider concluded it was less likely than not that the Veteran's heart disability had its onset during, or is otherwise related to, his military service. The opinion provider noted the Veteran's period of service, as well as his December 2009 statement that he began to experience chest pain during service; however, the opinion provider also noted that the service treatment records were silent for any cardiac complaints, evaluations, and/or treatments during active duty, and that the March 1973 discharge examination was silent for any mention of a heart condition or treatment. The opinion provider then noted that the Veteran's heart disabilities started after his military service noting that he suffered from a myocardial infarction in 2003. In addressing the possibility that the Veteran's in-service chest pain was the initial manifestation of his current heart disability, the opinion provider noted that, with the physical activity requirements during active duty, the Veteran would reasonably have needed medical attention for cardiac symptoms of chest pain, shortness of breath and being easily tired. The opinion provider noted that there is no record of the Veteran being unable to perform physical training or the duties of his military occupational specialty due to a cardiac condition or the claimed symptoms. The opinion provider acknowledged that the Veteran was competent to report his symptoms; however, the opinion provider noted that the only evidence relating the Veteran's current heart problems to his military service was his own assertions. Taken together, the February 2022 and May 2022 VA opinions are the only probative evidence of record addressing the Veteran's current heart disability had its onset during, or is otherwise related to, his military service. The opinions are 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, 304 (2008). In particular, the May 2022 opinion acknowledges the Veteran's statements concerning the onset of his chest pain; however, the opinion provider concluded that, had his chest pain been related to a cardiac problem, the Veteran would reasonably have needed medical attention. There is no probative opinion of record that is contrary to the conclusions of the February 2022 and May 2022 opinions. Insofar as the Veteran believes that the chest pain he experienced in service was the initial manifestation of his current heart problems, as noted above, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and anatomical relationships. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, supra; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, without competent evidence demonstrating the Veteran's current heart disability had its onset during, or is otherwise related to, his military service, the evidence weighs against his claim. Thus, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a heart disability must be denied. See 38 U.S.C. § 5103; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In the November 2021 remand, the Board directed the AOJ to schedule the Veteran for an examination that addressed whether the Veteran's hearing loss was related to his military service. In addressing this inquiry, the examiner was directed that he or she could not improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support the conclusion. In connection with the Board's November 2021 remand, the Veteran underwent a VA examination in December 2021, and the examiner noted his reports of hearing loss beginning in 1975, as well as his report that he was exposed to hazardous noise through heavy equipment and firearms, including M16 rifles. Nevertheless, the examiner concluded that the Veteran's hearing loss was less likely than not related to his military service. The examiner reasoned that normal hearing was shown at both entrance at discharge, and there were no in-service complaints for hearing loss. The examiner went on to note that, while noise exposure was conceded and the relationship between noise, auditory damage, and hearing loss had been established, auditory damage and hearing loss could not be conceded based on noise exposure alone. The examiner the stated that there must be nexus of auditory damage to relate the current hearing loss to his in-service noise exposure, and the evidence was against a nexus. Unfortunately, the December 2021 opinion is insufficient to adjudicate as the examiner failed to provide an adequate rationale in support of the conclusion. First, the Board notes that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service, Hensley v. Brown, 5 Vet. App. 155 (1993), and the examiner failed to explain the clinical significance of the fact that normal hearing was shown at both entrance at discharge. Furthermore, while the examiner stated that there must be nexus of auditory damage to relate the current hearing loss to his in-service noise exposure, and that the evidence was against such a nexus, the examiner failed to provide an explanation as to why the evidence of record was against such a nexus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, a new examination and etiology opinion is necessary. 2. Entitlement to service connection for tinnitus is remanded. As noted in the November 2021 remand, the March 2017 VA examiner noted that the Veteran's tinnitus was caused by his bilateral hearing loss. Thus, these issues are intertwined and the claim for service connection for tinnitus is remanded. On remand, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service problems hearing and/or ringing in his ears. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine whether his bilateral hearing loss had its onset during or is otherwise related to his military service, to include his in-service noise exposure. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his hearing loss. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner should address the following question: Is it at least as likely as not that Veteran's hearing loss had its onset in, or is otherwise related to his active duty service, to include his in-service noise exposure from gunfire and heavy equipment? In providing the requested opinion, the examiner should consider the Veteran's military occupational specialty and the sharpshooter badge he earned in service. See DD-214. Insofar as in-service audiograms have a bearing on the response to the above requested medical opinion, the examiner must indicate the clinical significance of such results, and how, from a medical perspective, the test results inform the conclusion reached. In rendering the opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A clearly stated rationale for any opinion offered should be provided and must be based on consideration of all pertinent lay and medical evidence. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.