Citation Nr: 1126685 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 09-03 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for status post squamous cell carcinoma, left second metacarpal (skin cancer), including as due to Agent Orange (herbicide) exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from October 1965 to July 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April and June 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran was scheduled to testify before a Member of the Board in a personal hearing at the Portland RO (Travel Board hearing) in December 2010. Because the Veteran did not report to the Board hearing, the hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2010); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). In April 2011, the Board requested an opinion from the Veteran's Health Administration (VHA) regarding medical questions presented in this case. A June 2011 VHA opinion was received by the Board, and a copy of that decision was provided to the Veteran. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma while in service. 2. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. Symptoms of bilateral hearing loss have been continuous since service separation. 4. The Veteran's current bilateral hearing loss is etiologically related to exposure to acoustic trauma in service. 5. The Veteran had "service in the Republic of Vietnam" and was exposed to herbicides during active service. 6. The Veteran had a growth on his left index finger in service. 7. The Veteran has a current diagnosis of skin cancer. 8. The Veteran's skin cancer is related to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2010). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for skin cancer, to include as due to herbicide exposure, are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The claims of service connection for bilateral hearing loss and skin cancer have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection may also 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). In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a) (2010); see also 38 U.S.C.A. § 1154 (West 2002). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Bilateral Hearing Loss In this case, the Veteran asserts that he has current bilateral hearing loss disability that is the result of noise exposure while serving as a typist in the United States Army and being exposed to loud noise due to artillery fire in service. First addressing the question of current disability, the Board finds that the Veteran has bilateral hearing loss "disability" according to VA disability compensation regulation 38 C.F.R. § 3.385. In August 2003, on private audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 35, 50, 70, 105, and 110 decibels, respectively, with an average puretone threshold of 83.75 decibels. The speech recognition score for the right ear was 80 percent. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 25, 40, 60, 70, and 95 decibels, respectively, with an average puretone threshold of 66.25 decibels. The speech recognition score for the left ear was 80 percent. The August 2003 private audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph as shown above. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, No. 09-4406 (U.S. Vet. App. Nov. 3, 2010) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). On May 2006 VA audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 35, 50, 70, 105, and 110 decibels, respectively, with an average puretone threshold of 84 decibels. The speech recognition score for the right ear was 92 percent. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 40, 55, 70, 80, and 95 decibels, respectively, with an average puretone threshold of 75 decibels. The speech recognition score for the left ear was 80 percent. The Board finds that the Veteran was exposed to acoustic trauma in service. The Veteran's service records document that the Veteran was engaged in combat against enemy forces in Vietnam. An August 1967 "Letter of Commendation" reported that the Veteran had aided considerably in the operation of his unit in a combat area. In the May 2006 VA audiological examination, the Veteran reported that during service he was exposed to loud noise (acoustic trauma) from artillery and generators. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Because the Board has found that the Veteran engaged in combat, the Board accepts as credible the Veteran's assertion of exposure to acoustic trauma in service as consistent with the duties and circumstances of his service. See 38 U.S.C.A. § 1154(b). On entrance examination in October 1965, puretone thresholds, at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 10, 5, 10, 35, and 70 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 10, 10, 15, 0, and 10 decibels, respectively. In an April 1966 service audiological examination, puretone thresholds, at the test frequencies of 500, 1000, 2000, and 4000 Hertz in the right ear were 15, 10, 5, and 90 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, and 4000 Hertz in the left ear were 15, 10, 15, and 15 decibels, respectively. On service separation audiological examination, in July 1968, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 10, 10, 15, and 5 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 10, 10, 15, and 5 decibels, respectively. All puretone thresholds have been converted from ASA units to ISO units. Service department audiometric examinations prior to November 1, 1967, are assumed to be American Standards Association (ASA) units and have been converted to International Standards Organization (ISO) units for proper comparison. Because the July 1968 audiology examination indicated ASA measures, even though the test was conducted after November 1, 1967, the test results have also been converted to ISO. Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board next finds that the weight of the evidence demonstrates that hearing loss symptoms have been continuous since service separation in July 1968. In a November 2002 statement, the Veteran's spouse reported that the Veteran had suffered from hearing loss since he returned from service in 1968. In the August 2003 private audiolgocal examination, the Veteran reported a history of bilateral hearing loss from exposure to hazardous noise in the armed forces. As the statements made to private physicians in August 2003 were made during the course of treatment, they are afforded great probative weight. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. See Rucker, 10 Vet. App. 73 (observing that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1991). The Board further finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss disability is related to exposure to acoustic trauma in service. Although the Veteran was not specifically diagnosed with hearing loss disability of either ear in active service, such was not required. The evidence of record demonstrates acoustic trauma in service, and some worsening of hearing loss in both ears during service, as reflected by higher puretone thresholds for specific frequencies in both the right and left ear at the service audiological examination conducted in April 1966. The Board finds that such audiometric threshold increases in hearing loss at various frequencies in both ears during service reflects evidence of "chronic" symptoms of left and right ear hearing loss in service, as contemplated by 38 C.F.R. § 3.303(b). 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." 38 C.F.R. § 3.303(b). The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's bilateral hearing loss disability is related to exposure to acoustic trauma in service. In the May 2006 VA audiological opinion, which weighs against the Veteran's claim, the examiner opined that the Veteran's current hearing loss was not likely related to his exposure to noise in service, reasoning that the Veteran had had high frequency hearing loss upon entrance into service and normal hearing at the time of his separation from active duty. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The negative May 2006 VA audiological opinion was reportedly based upon a claims file review; however, the fact of worsening of hearing loss in service, which is reflective of "chronic" symptoms of hearing loss in service, as indicated by elevated audiometric threshold test scores at the April 1966 service audiological examination, was not noted or considered in the May 2006 VA opinion. Because this significant fact was not considered, the probative value of the May 2006 VA opinion is diminished. In addition, the May 2006 VA examiner made the factually inaccurate assumption that the Veteran's bilateral hearing loss had recovered without permanent loss during service when, in fact, audiometric testing in service in April 1966 show evidence of hearing loss during service. The May 2006 VA examiner's reference to a "normal" audiogram at service separation only reflects that the bilateral hearing loss worsening was not to a compensable degree, or was not to some unstated degree to be considered significant; this characterization of the worsened audiometric test scores in service as "normal" is factually inaccurate because it does not recognize the clinically measured worsening of bilateral hearing loss during service. Such evidence of increased auditory thresholds during service is analogous to "chronic" hearing loss during service under 38 C.F.R. § 3.303(b), and shows some worsening of bilateral hearing during service. According to the May 2006 VA examiner's logic, where there is such lack of complete recovery of a subsequent to the noise exposure, which the Board finds as a fact there is, the evidence shows permanent bilateral hearing loss during service. See 38 C.F.R. § 3.303(b) (with chronic disease in service, subsequent manifestations of the same chronic disease at any later date, however remote, are to be service connected). For these reasons, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's bilateral hearing loss disability is related to exposure to acoustic trauma in service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for bilateral hearing loss. Service Connection for Skin Cancer The Veteran seeks service connection skin cancer, to include as due to exposure to herbicides. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden, at 1167. With respect to element (1), current disability, it is uncontroverted that the Veteran was diagnosed with skin cancer and now suffers with residuals of the disease. Concerning the question of in-service disease or injury, the injury or event here contended is exposure to herbicides in Vietnam. Based upon information obtained from the Veteran's service personnel and treatment records, such exposure to herbicides during active service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2010) (a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent). The Veteran also reported a callous-like growth on his left index finger in service which he continually picked at. See Bennett, 10 Vet. App. 178 (the Board may rely upon lay testimony as to observable facts). With respect to the question of medical nexus, because the Veteran's skin cancer not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e) (2010), medical nexus may not be presumed as a matter of law. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's claims on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In a June 2011 VHA medical opinion, a VHA examiner opined that the Veteran's current squamous cell carcinoma is at least as likely as not related to service. The VHA examiner reasoned that the Veteran had complaints of a callous-like growth on his left index finger in service and that there is an increased risk for cutaneous squamous cell carcinoma in chronically inflamed skin. The VHA examiner also reasoned that the development of squamous cell cancer can be as much as 60 years from the time of the initial traumatic lesion. The Board finds that the June 2011 VHA opinion is competent and probative medical evidence because it is factually accurate, as it appears the VHA examiner reviewed the claims file and was informed of the relevant evidence in this case, the opinion is fully articulated, and is supported by a sound reasoning. For these reasons, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's skin cancer is related to service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for skin cancer. ORDER Service connection for bilateral hearing loss is granted. Service connection for skin cancer is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs