Citation Nr: 1317400	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  09-15 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for a prostate disorder, to include residuals of prostate cancer and benign prostatic hypertrophy, as due to exposure to herbicides, and/or as secondary to service-connected bladder cancer.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

L. Edwards, Associate Counsel



INTRODUCTION

The Veteran had active service from February 1971 to April 1972.  The Veteran had service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Veteran now resides in Oregon, so the matter is now handled by the RO in Portland, Oregon   

In November 2012, the Board remanded these claims for additional development.  That development having been completed, the claim is now ready for appellate review.


FINDINGS OF FACT

1.  The Veteran has not received a diagnosis of prostate cancer.

2.  The Veteran's current prostate disorder is not causally or etiologically due to service, to include exposure to herbicides and is not proximately due to or aggravated by his service-connected bladder cancer.

3.  The Veteran does not have a diagnosis of left ear hearing loss as defined by VA regulations.

4.  The Veteran's right ear hearing loss is not causally or etiologically due to service.




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CONCLUSIONS OF LAW

1.  Service connection for a prostate disorder, to include residuals of prostate cancer and benign prostatic hypertrophy, as due to exposure to herbicides, and/or as secondary to service-connected bladder cancer, is not established.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

2.  Service connection for bilateral hearing loss is not established.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012).  Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2006 that fully addressed the entire notice element, and was sent prior to the initial decision.  The letter informed him of what evidence was required to substantiate his claims and of his and the VA's respective duties for obtaining evidence.  

There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

To fulfill Dingess requirements, in May 2006, the RO provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits.  The RO successfully completed the notice requirements with respect to the issue on appeal.

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

Additionally, VA has a duty to assist the Veteran in claim development.  This includes assisting in the procurement of service treatment records and pertinent medical records, and providing an examination when necessary.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159.

In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA outpatient treatment records, service treatment records, private treatment records, Social Security Administration records, and a VA medical opinion and examination pertinent to the issues on appeal.  Virtual VA records have been reviewed.

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Service Connection Claims

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must 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). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  However, this method is only applicable if the claimed disability is a chronic condition as set forth in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.309(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Because diseases of the nervous system and malignant tumors are specifically listed as chronic diseases under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in the Veteran's claims of service connection for prostate cancer and hearing loss.

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

Service connection may also be granted for an organic disease of the nervous system, such as sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  For a 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.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Secondary service connection may be established when there is causation or aggravation of a Veteran's non-service connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).

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) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992). 

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

A.  Entitlement to Service Connection for a Prostate Disorder, to Include Residuals of Prostate Cancer and Benign Prostatic Hypertrophy, as Due to Exposure to Herbicides

The Veteran seeks entitlement to service connection for a prostate disorder, to include residuals of prostate cancer and benign prostatic hypertrophy, as due to exposure to herbicides.  Importantly, exposure to herbicides has been conceded.  See November 2006 rating decision.  The Veteran has also been granted service connection for neurogenic bladder.

The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116.  Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 

Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service.  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) 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: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma.  38 C.F.R. § 3.309(e).  

Service records were reviewed.  The Veteran's entrance examination from March 1970 did not indicate any prostate abnormalities.  The separation examination April 1972 did not indicate any prostate abnormalities.  

Post-service records were reviewed.  In December 1992, the Veteran was afforded a VA examination for Agent Orange exposure.  There were no noted prostate problems.  The Veteran underwent an additional Agent Orange examination in May 2001.  Lab tests conducted revealed his prostate-specific antigen (PSA) level was 0.7 and was within normal limits.  In September 2005, the Veteran's PSA was 1.1

The Veteran was afforded a genitourinary VA examination in June 2006.  It was noted that the Veteran did not have prostate cancer, but had bladder cancer.  It was noted that the Veteran was status post transurethral resection of the prostate for benign prostatic hypertrophy causing bladder outlet obstruction symptoms, which had improved since November 2002.  PSA was 0.9.  

In September 2006, a VA outpatient note indicated the Veteran had benign prostate hypertrophy (BPH).

The Veteran was afforded a VA examination in January 2013.  It was noted he had been diagnosed with prostate hypertrophy in approximately 2002.  The examiner noted that the Veteran had been diagnosed with bladder cancer in November 2002.  PSA's from 2001 to 2011, of record, were all normal.  The examiner noted that the Veteran underwent a resection of the prostate, due to bladder outlet obstruction/hypertrophy, at the same time he was treated for bladder cancer in 2002.  The examiner stated the Veteran had never been diagnosed with prostate cancer.  The examiner opined that the Veteran's current prostate disorder less likely than not originated during his active duty service, as a result of any incident of, including his exposure to Agent Orange, or as secondary to his service-connected bladder cancer, or aggravated by his bladder cancer.  The examiner stated that hypertrophy of the prostate is not caused by or aggravated by bladder cancer and is etiologically unrelated to service or bladder cancer.  The examiner noted that recent urology evaluation in August 2012 did not identify any current prostate condition, nor note any urinary symptoms and PSA's have been consistently normal.

The Veteran's lay statements in support of his claim have been considered.  The Board notes that the Veteran is competent to comment on any symptoms, such as pain.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, which involves benign prostate hypertrophy, falls outside the realm of common knowledge of a layperson.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  

To date, there is no medical evidence demonstrating a causal relationship between the Veteran's time in service and his currently diagnosed benign prostate hypertrophy.  Because of the absence of a medical nexus between his current diagnosis and his time service, the Board finds that the evidence is against a grant of service connection.  Importantly, the VA examiner from January 2013 opined that the Veteran's benign prostate hypertrophy is less likely than not related to service or caused by or aggravated by his service-connected bladder cancer.  Furthermore, the Veteran has never been diagnosed with prostate cancer, and as such, is not entitled to presumptive service connection for prostate cancer based on his exposure to herbicides.

In summary, the weight of the evidence reflects that the Veteran was diagnosed with benign prostate hypertrophy many years after service.  Additionally, there were no symptoms or diagnosis of this disorder during service.  Furthermore, a VA examiner has opined that the Veteran's current benign prostate hypertrophy is less likely than not due to service or his service-connected bladder cancer. 

Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for a prostate disorder.  As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, the appeal is denied.

B.  Entitlement to Service Connection for Bilateral Hearing Loss

The Veteran seeks entitlement to service connection for bilateral hearing loss.  He asserts he was exposed to acoustic trauma during service and currently suffers from hearing loss as a result of his time in service.  The Board notes that the Veteran served in Vietnam as a truck driver; giving the Veteran the benefit of the doubt, exposure to acoustic trauma is conceded.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.

Available service treatment records were reviewed.  The Veteran's March 1970 entrance examination indicated he had normal hearing, bilaterally.  His discharge examination from April 1972 revealed hearing levels of 25 decibels in the right ear from 500 Hertz to 6000 Hertz and 25 decibels in the left ear from 2000 Hertz to 6000 Hertz.

Post-service, during a June 1997 Social Security examination, the Veteran indicated that his loss of hearing was a new injury or illness.

The Veteran was afforded a VA audiological examination in June 2006.  He complained of difficulty hearing, including difficulty understanding his daughter.  He stated he experienced noise exposure during service as a truck driver without hearing protection.  He denied any other excessive noise exposure.  He also denied any middle ear pathology, vertigo, or family history of hearing loss or head/ear trauma.  

During the audiological evaluation in June 2006, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
15
20
LEFT
10
10
5
5
15

Speech recognition scores were 100 percent, bilaterally.  It was noted that the Veteran's hearing was within normal limits, bilaterally.  The results from the June 2006 VA examination does not show bilateral hearing loss as it is defined by VA regulations.

In April 2010, a VA outpatient note indicated there were no apparent hearing deficits, bilaterally.  A VA outpatient Problem List for dates of November 2010 to January 2011 does not indicate the Veteran sought treatment for or was diagnosed with hearing loss.  The Veteran reported he was hard of hearing during a VA general examination in March 2011.

The Veteran was afforded a VA audiological examination in January 2013.  During the audiological evaluation in January 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
35
30
60
LEFT
10
10
10
15
20

Speech recognition scores were 90 percent in the right ear and 96 percent in the left ear.  The results from the January 2013 VA examination demonstrate right ear hearing loss as it is defined by VA regulations, but does not reveal a left ear hearing loss.

The VA examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service.  The examiner noted that the Veteran had normal hearing during the 2006 VA examination, which has worsened over the last six years.  The examiner stated there was no evidence in the claims file, including the 2006 VA examination, to support the claim that military noise exposure is the cause of his asymmetric sensory neural hearing loss.

Additional VA outpatient and private records were reviewed.  In a January 2013 VA outpatient note, it was noted that the Veteran sought treatment for right ear hearing loss.  He reported dizziness and imbalance.  It was noted that the left ear with essentially within normal limits from 250 Hertz through 4000 Hertz with a mild loss at 4000 Hertz and 8000 Hertz and the right ear showed a moderate/mild, slightly upward sloping sensorineural hearing loss, dropping to a severe high frequency loss.  The physician stated that the sensorineural hearing loss with normal reflexes and good word recognitions suggested a cochlear etiology and his reported imbalance might be consistent with a vestibular hypofunction of the right side.

After a careful review of the evidence of record, it is found that entitlement to service connection for bilateral hearing loss has not been established.  There Board notes that the Veteran meets the requirements for a diagnosis of right ear hearing loss, but does not meet the threshold requirements for a diagnosis of left ear hearing loss.  Furthermore, there is no competent medical evidence that his hearing loss and is related to his time in service.  To the contrary, the only medical opinion of record indicates that the Veteran's hearing loss is not due to service.  
  
The Veteran has submitted statements asserting that his hearing loss is a result of service.  The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, and the length of time those symptoms have persisted.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Although the Veteran is certainly competent to state that he first noticed hearing loss shortly after service, there are no objective findings to support that assertion, and the Veteran's lay statements as to the start of his hearing loss is outweighed by the other evidence of record, which tends to show that hearing loss cannot be traced to a specific period of active duty.  

The preponderance of the evidence is against the claim.  As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome.  See 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a prostate disorder, to include residuals of prostate cancer and benign prostatic hypertrophy, as due to herbicide exposure, and/or as secondary to service-connected bladder cancer, is denied.

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs