Citation Nr: 1648536	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  12-24 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:  Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

M. Gonzalez, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from December 1968 to July 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans (VA) Regional Office (RO) in Denver, Colorado.  

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2016.  A transcript of that hearing is of record.

The Board notes that the electronic claims file contains a January 2011 Fast Track Claims Processing letter that conceded Agent Orange exposure and granted service connection for coronary artery disease with an evaluation of 100 percent effective December 14, 2010.  The electronic claims file, however, also contains an August 2016 Memorandum for the Record that explained that the January 2011 notification letter was a computer generated recommended rating decision based on medical information.  The memorandum explained that the recommendation was reviewed by a rating specialist, but denied as the rating specialist determined there was no evidence of Vietnam service or exposure to herbicides while in service.  As such, the Board finds that the Veteran has not previously been granted service connection for coronary artery disease with an evaluation of 100 percent effective December 14, 2010.      

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for an acquired psychiatric disability, including PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence is in equipoise as to whether the Veteran's bilateral hearing loss was incurred during service.

2.  The probative evidence of record shows that the Veteran served in the Republic of Vietnam during the Vietnam War, and is therefore presumed to have been exposed to herbicides.

3.  The Veteran has a current diagnosis of coronary artery disease, which has manifested to a compensable level. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016).
2.  The criteria for service connection for coronary artery disease have been met.  38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, for certain chronic diseases detailed in 38 C.F.R. § 3.309 (a), that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)).

In order 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).

For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385.  See Hensley v. Brown, 5 Vet. App. 155 (1993).  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Id. at 159.
Moreover, where a veteran served continuously for 90 days or more during  a period of war, or during peacetime service after December 31, 1946, and certain disabilities, including sensorineural hearing loss, and other organic diseases of the nervous system, become manifest to a degree of 10 percent within one year from the date of termination of 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 C.F.R. §§ 3.307, 3.309 (2015); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any material issue to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

      Hearing Loss
      
The Veteran seeks service connection for bilateral hearing loss, which he asserts was caused by in-service noise exposure.  

The evidence of record contains a current diagnosis of bilateral hearing loss which meets the criteria for a hearing disability for VA purposes.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).

With respect to an in-service event or injury, in an October 2015 statement in support of claim the Veteran asserted that he worked around aircraft noise his entire military career, and that he had 3500 to 4000 hours of flying time in 11 years and 9 months of military service.  The Veteran testified at an August 2016 Board hearing that he was regularly exposed to jet engines in service.  The Veteran is competent to describe the facts of circumstances of what he experienced during service.  38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.159(a)(2) (2016).

Service personnel records verify the Veteran's military occupation was a pilot.  The Veteran's claimed exposure to loud noise from jet aircraft is consistent with the circumstances, conditions, and hardships of his service, and is credible.  See 38 U.S.C.A. § 1154(b) (West 2014 & Supp. 2015).  Accordingly, the Board finds the Veteran's competent statements to be credible evidence of in-service noise exposure.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Thus, the remaining question is whether the Veteran's current hearing loss is related to his in-service noise exposure.  

In a December 2010 VA audiology examination the Veteran reported in-service noise exposure from turbine powered airplanes and helicopters with a constant high pitched noise, without the use of hearing protection while serving as a pilot in Vietnam.  The VA examiner diagnosed the Veteran with severe high frequency sensorineural hearing loss at 3000 to 4000 Hertz, bilaterally.  The Veteran's claims file was not made available for review; however, the examiner noted that the Veteran's military occupation had a high probability of exposure to hazardous noise.  The examiner opined that it was at least as likely as not that the hearing loss was the result of noise exposure in the military.

Subsequently, the claims file was made available to the December 2010 VA examiner.  In a March 2011 addendum opinion the VA examiner noted there was audiometric testing from 1968 through 1980.  The examiner noted there was no significant change in hearing from 1968 through 1980 through 4000 Hertz.  The examiner opined it was not likely the hearing loss was the result of noise exposure in service.

A review of the Veteran's service treatment records reveals an October 1968 enlistment audiogram, which showed puretone thresholds, in decibels, as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
0
0
0
/
5
/
LEFT
0
0
0
/
5
/

The Veteran's last in-service audiogram of record, which is dated March 1980, showed puretone thresholds, in decibels, as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
5
0
0
10
10
25
LEFT
5
0
0
5
15
10

The Veteran is presumed to be of sound condition when enrolled in service except as to defects noted on his entrance examination.  38 U.S.C.A. §§ 1111, 1137 (West 2014); 38 C.F.R. § 3.304(b) (2016).  As no hearing loss was noted on the Veteran's entrance examination, the Veteran is presumed sound as to his hearing acuity at enlistment.  In the December 2010 VA examination the examiner provided a personal examination to the Veteran, reviewed the Veteran's service and medical history, and noted that the Veteran had a history of hearing loss, and that the Veteran reported the hearing loss as long standing.  The examiner's opinion is absent intervening causes that may have led to hearing loss and indeed reported that the Veteran was a letter carrier after his military service.  As noted above, the same VA examiner in a March 2011 addendum opinion opined that hearing loss was not related to service and that there was no significant change in hearing during service, however, her opinion did not include a discussion regarding the significance, if any, of the Veteran's March 1980 audiogram, or whether there is a medically sound basis to attribute the post service hearing loss to the in-service acoustic trauma; as such, the Board finds that this rationale is not adequately explained, such that is warrants significant probative value.  See Hensley, 5 Vet. App. at 155; see also Ledford v. Derwinski, 2 Vet. App. 87, 89 (1992).  The Veteran is competent to attest to the presence of observable symptoms, such as difficulty hearing.  See Layno, 6 Vet. App. at 469.  The Board finds that the Veteran's statement during the December 2010 VA examination regarding long standing decreased hearing ability is both competent and credible and places more weight of probative value on it than the March 2011 VA addendum opinion.  

The Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his service.  Hence, the Board resolves any doubt in favor of the Veteran, and concludes that service connection for bilateral hearing loss is granted.  38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

      Ischemic Heart Disease

Service connection may also be presumed for certain diseases, including ischemic heart disease, if a veteran was exposed to a herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service.  38 C.F.R. §§ 3.307 (a)(6), 3.309(e).  Ischemic heart disease is defined as including, but not limited to, atherosclerotic cardiovascular disease including coronary artery disease.  38 C.F.R. § 3.309(e).  A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).

The VA has determined that the regulatory definition requires that an individual actually have been present on the land mass of Vietnam. VAOPGCPREC 27-97; 62 Fed. Reg. 63604 (1997).  Specifically, a veteran must actually set foot within the land borders of Vietnam, to include the contiguous or inland waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides.  See Hass v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); see also VAOPGCPREC 27-97.

In August 2010 the Veteran submitted a claim of entitlement to service connection for ischemic heart disease, which he contends is due to in-service exposure to Agent Orange.  An August 2011 rating decision denied the Veteran's service connection claim, the RO determined there was no evidence of record to show the Veteran stepped foot in the Republic of Vietnam.  Thereafter, the Veteran perfected an appeal.

The evidence of record contains a current diagnosis of IHD which has manifested to a compensable level.  Specifically, a January 2011 disability benefits questionnaire (DBQ) completed by the Veteran's VA treatment provider shows a February 2010 coronary artery disease diagnosis.  

Coronary artery disease is rated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005 (2015).  Under DC 7005, a ten percent evaluation is warranted when a workload of greater than seven metabolic equivalents (MET), but not greater than ten METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or when continuous medication is required.  The January 2011 DBQ notes that the Veteran's IHD treatment plan includes taking aspirin, lisinopril, simvastatin, carvedilol, and niacin as continuous medications.  As the Veteran has a diagnosis which has manifested to a degree of ten percent or more, the only remaining question is whether the Veteran was exposed to Agent Orange.  38 C.F.R. §§ 3.307, 3.309.  

The Veteran contends that he made at least six trips to Vietnam to deliver radio equipment while serving as a pilot stationed in Thailand during the Vietnam War.  The Veteran testified at an August 2016 Board hearing that on his final trip in Vietnam in April 1975, he spent three days in the Defense Attaché Office in Saigon in support of a two-star general, as his pilot.  

To corroborate this, the Veteran submitted a notarized statement from Major General Svendsen in which the General attests that the Veteran was in Saigon in April 1975.  

Service personnel records confirm the Veteran was a pilot in the Army, and that he served during the Vietnam War in Thailand.  A flight record for the period February through April 1975 demonstrates the Veteran had flown a total of 115 combat hours to date.  Notably, an Army Leave and Earnings Statement from June 1975 shows that the Veteran received hostile pay, and under "Remarks" it was noted "DUE SM RVN APR75."  

Based on the foregoing, the Board finds that the Veteran had in-country service in the Republic of Vietnam, and therefore, is presumed to have been exposed to Agent Orange.  As there is no affirmative evidence demonstrating that the Veteran was not exposed to Agent Orange during his active duty, the Board finds that service connection is warranted for coronary artery disease on a presumptive basis.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.

ORDER

Service connection for bilateral hearing loss is granted.

Service connection for coronary artery disease is granted.


REMAND

Psychiatric Disability

The Veteran contends that he has a current psychiatric disability, including  PTSD, that developed as a result of his active military service.  In support of this, the Veteran submitted a June 2013 written statement from a Department of Defense employee who from August 1978 to June 1980 was stationed at the same military base in Germany as the Veteran.  

According to the statement, the Veteran was known to act "strangely," including an incident where he was seen climbing a tree and yelling at others to "get out of the line of fire."  The statement relates that despite efforts by other service members to convince the Veteran to climb down from the tree, he would not listen.

Service treatment records contain a March 1980 Medical Recommendation for Flying Duty which noted the Veteran had a medical disqualification for flying duty and that medical clearance was granted "pending consultation with psychiatry."  The record does not indicate whether a psychiatric examination was performed during service.  The following month the Veteran's request to be released due to conflicts in divorce trial dates was approved, and the Veteran was discharged from active duty in July 1980.

Post-service VA and private treatment records show diagnoses of anxiety, bipolar disorder, obsessive compulsive disorder, and mood disorder.

The Veteran underwent a VA examination in January 2011, during which the examiner opined that the Veteran did not have symptoms fulfilling requirements for an active diagnosis of PTSD.  The VA examiner noted the Veteran's history of bipolar disorder, dependent personality disorder, depression, and obsessive-compulsive disorder (OCD).  The examiner noted that the Veteran saw a military psychiatrist in 1980, but the diagnosis was unknown.  The examiner also noted that the Veteran had received mental health treatment for at least ten years including a variety of medications.  The examiner opined that:  "it appears [the Veteran] does suffer from some psychiatric disorder(s) and there may well be other symptoms associated with military service but that is beyond the scope of this examination."  

As the VA examiner did not provide an opinion with respect to the Veteran's other psychiatric diagnoses rendered during the course of his claim, the Board finds a remand is necessary for a new VA medical opinion.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran is hereby notified that it is his responsibility to report for any examination deemed necessary and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655 (2015).

Additionally, the Veteran testified at the August 2016 Board hearing that he spent 19 days at the Denver VA psychiatric ward in 2014.  A review of the record reveals no treatment records from the Denver VA Medical Center (VAMC) after January 2014 and no inpatient psychiatric treatment records.  Therefore, on remand, the AOJ must obtain all outstanding VA treatment records from the Denver VAMC.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain all outstanding VA treatment records from the Denver VAMC, dated from January 2014 to the present.  All efforts to obtain this evidence should be documented in the claims file.

If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them.  All efforts to obtain this evidence should be documented in the claims file.

2.  After the above development has been completed to the extent possible, and relevant records are associated with the claims file, send the claims file to an appropriate examiner to obtain another opinion with respect to the Veteran's service connection claim for a psychiatric disorder.  If an examination is deemed necessary to respond the questions, one should be scheduled.  The Veteran's claims file should be reviewed by the examiner and the examination report should reflect such review.  

For each psychiatric disorder diagnosed during the course of this claim, including bipolar disorder, anxiety, depression, mood disorder, and OCD, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such psychiatric disorder either began during the Veteran's active duty service or is otherwise related to service.  

In so doing, the examiner should consider:

A.  The June 2013 lay statement describing the Veteran's behavior during service;  

B.  The March 1980 service treatment record showing flight status "pending consultation and psychiatry"; and 

C.  All psychiatric evaluations of record, to specifically include the January 2011 VA examination report.

A complete rationale should be provided for any opinion expressed.

4.  After the above development has been completed, readjudicate the claims for service connection for bilateral hearing loss and a psychiatric disability.  If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate opportunity to respond thereto before returning the matter to the Board, if otherwise in order.
     
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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