Citation Nr: 1318317 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-35 275 ) 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 tinnitus. 3. Entitlement to service connection for bladder cancer. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1956 to November 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2011. A transcript of that hearing is of record. This matter was previously before the Board and was remanded in September 2012. The mandates of the remand have been substantially complied with and results in no prejudice to the Veteran. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss had its onset during his active service. 2. The Veteran's current tinnitus had its onset during his active service. 3. The Veteran's current bladder cancer disability did not have its onset during his active service and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for bladder cancer have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). With respect to the hearing loss and tinnitus claims in this appeal, the decision below grants entitlement to service connection for both claims. As this is a full grant of the benefits sought with respect to these issues, no further discussion of VCAA is necessary. The discussion below pertains only to the issue of entitlement to service connection for bladder cancer, which is denied in the decision below. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, 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 notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was provided with VCAA notice in April 2008. At that time, he was notified of the evidence not of record that was necessary to substantiate his claim. He was told that he needed to provide the names of persons, agencies, or companies who had additional records to help decide his claim. He was informed that VA would attempt to review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, and obtain service, VA, and private treatment records as indicated. The same letter also informed the Veteran regarding the appropriate disability rating or effective date to be assigned. With regard to the timing of the April 2008 VCAA notice, VCAA notice should be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In the present case, VCAA notice was provided in April 2008 and the RO initially denied the claim in December 2008. Thus, the VCAA notice was timely. There is no allegation from the Veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes: (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service treatment records (STRs) or other records relevant to active duty and VA or VA-authorized treatment records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. See 38 C.F.R. § 3.159(c). In this case, the Veteran's STRs and all identified and authorized post-service treatment records have been requested or obtained. Accordingly, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. The Veteran was afforded a VA examination in October 2012. The examiner thoroughly reviewed the Veteran's claims file and provided a clear opinion supported by a detailed rationale. As such, the Board finds the VA examination and etiology opinion are sufficient for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Board hearing, the undersigned complied with the holding of Bryant by explaining the issue on appeal denied in the instant decision. The Veteran, with his representative and with questions from the undersigned, discussed evidence of record. The transcript of the Board hearing reflects that the Veteran's contentions regarding exposure to DDT and diesel fuel fumes were discussed in detail. As the issue was fully explained and the undersigned asked questions that sought information directly related to the claim and the Veteran's contentions, the Board finds that there was substantial compliance with Bryant. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Hearing Loss & Tinnitus Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). The Board notes that sensorineural hearing loss is considered an organic disease of the nervous system for purposes of inclusion in 38 C.F.R. § 3.309(a); tinnitus is not. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensorineural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With hearing loss claims, VA may only find hearing loss to be 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 are less than 94 percent. 38 C.F.R. § 3.385. A June 2008 VA audiological examiner diagnosed the Veteran with mild to severe sensorineural hearing loss. The audiometric testing from this examination showed auditory thresholds for each of the frequencies between 1000 and 4000 at 40 or greater. Thus, the Veteran meets the requirement of having a current hearing loss disability. The same examination report diagnosed the Veteran with tinnitus. The salient question remaining is whether the hearing loss and tinnitus disabilities are related to the Veteran's active duty service. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Veteran contends that he has a bilateral hearing loss disability and tinnitus that are related to service. He specifically maintains that he experiences bilateral hearing loss and tinnitus resulting from hazardous military noise exposure and an incident during service when he was aboard an aircraft that suddenly loss altitude, causing a rapid decompression of the cabin, thereby damaging his ear drums. With respect to hazardous military noise exposure, he contends that he was routinely exposed to jet engine noise while picking up dumpsters along the flight line, that he was exposed to loud gunfire on the rifle range, and that he was exposed to loud engine noises from equipment he was required to use to spray for mosquitoes and other insects during his service in Japan and Montana. The Veteran essentially contends that he had a bilateral hearing loss disability and tinnitus during service and since service. As to an in-service injury, the Veteran's STRs do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385, and do not show complaints, findings, or diagnoses of tinnitus. His October 1960 separation examination revealed normal hearing for VA purposes at that time, although he was noted to have some minor hearing impairment, primarily at the 2000 Hertz and 4000 Hertz frequencies. See 38 C.F.R. § 3.385. The Veteran reported at the 2008 VA examination that he had been aware of his hearing loss and tinnitus symptoms since active duty service. The Board finds that the Veteran is both competent and credible to report hearing problems and tinnitus (ringing in his ears) after exposure to loud jet aircraft noise, exposure to gunfire on the rifle range, and an incident in a plane when the plane lost pressure and he experienced ear pain, even if these specific events are not documented in his service treatment records. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Additionally, the Board notes that it may not reject the credibility of the Veteran's lay testimony regarding the in-service hearing complaints, including tinnitus, and acoustic trauma simply because it is not corroborated by contemporaneous medical records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the record documents in-service acoustic trauma, as well as hearing loss symptoms and tinnitus. As to evidence of a relationship between the current bilateral hearing loss and tinnitus and the Veteran's noise exposure/hearing loss/tinnitus symptoms while on active duty, the Board finds the Veteran has provided competent and credible evidence in the form of his statements on appeal which are described above. These statements and reports by the Veteran reflect that he experienced difficulty with hearing and tinnitus in active military service and since. See Layno v. Brown, 6 Vet. App. 465 (1994). With respect to competent medical opinions of record, the June 2008 VA examiner provided two opinions. Initially, the examiner did not have access to the Veteran's claims file. At that time, the examiner stated that unless the Veteran's separation examination showed reliable pure-tone testing that indicated normal hearing, it was at least as likely as not that his hearing loss and tinnitus were caused by noise exposure in the service. The examiner stated that this opinion was based on three factors: 1) the Veteran was around aircraft in service and spent a significant amount of time on the rifle range so he was exposed to excessive noise in service; 2) the configuration of the Veteran's hearing loss was consistent with the effects of noise exposure; and 3) the Veteran did not appear to have a history of excessive occupational noise (after service) because he worked in refrigeration, which is not known to involve excessive noise. Upon review of the Veteran's claims file, the same examiner offered an October 2008 amended opinion and stated that the Veteran's separation examination showed normal hearing in both ears. The examiner stated that since the Veteran's separation examination did show normal hearing and the hearing test appeared reliable, it could only be concluded that the Veteran's present hearing loss and tinnitus occurred after leaving the service. The examiner added that he could "only speculate" as to the etiology of the Veteran's hearing loss and tinnitus. In a September 2012 remand, the Board requested a clarifying opinion from the 2008 VA examiner. The Board explained that lack of documented hearing loss in service is not fatal to a hearing loss service connection claim and that if the examiner is unable to provide an opinion without resort to mere speculation, he must explain why this is so. The Board requested that the VA examiner explain the significance of a normal audiogram after noise exposure and provide an explanation for why an opinion cannot be provided without resort to mere speculation if the examiner reaches such a conclusion. The 2008 VA examiner provided another addendum opinion in October 2012. With respect to the hearing loss claim, the examiner stated that the Veteran's service records did not support a claim of service connected hearing loss. He noted that the Veteran's separation examination in October 1960 showed normal hearing in both ears. The examiner stated that the Veteran now presents with significant hearing loss in both ears that the evidence "clearly showed did not exist when he left the service in 1960." The examiner stated that the Veteran's hearing loss occurred after leaving service and that his hearing loss was not due to any delayed or latent onset theory of causation. He went on to state that the Veteran's hearing loss was due to factors that occurred after leaving the service. With respect to tinnitus, the examiner stated that it was less likely than not that the Veteran's current tinnitus was related to service. The examiner's rationale was that no complaints of tinnitus were found in the Veteran's service records or on his separation examination. The Board finds that the VA examiner's two addendum opinions weigh against the Veteran's claim and have no probative value. First, it is clear that the examiner has based his opinion on the sole factor that the Veteran's separation examination report was negative for hearing loss or tinnitus. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). As the examiner's negative opinion as to the etiology of the Veteran's bilateral hearing loss appears to be based solely on the fact that he had "normal" hearing during active military service, the Board finds the premise of this opinion contradicts the Court's holding in Hensley and therefore has no probative value. Second, the VA examiner did not acknowledge and discuss the Veteran's competent reports that he suffered from bilateral hearing loss and tinnitus during and since his period of service. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Third, the Board also finds the two addendum opinions to have no probative value because neither of the opinions address (much less refute) the three factors the examiner listed in the initial opinion that weigh in favor of the Veteran's claim (that the Veteran experienced excessive noise in service, that his type of hearing loss was consistent with excessive noise exposure, and that the Veteran did not have excessive noise exposure in his post-service occupational field of refrigeration). In fact, although the examiner stated in the October 2012 addendum that the Veteran's hearing loss and tinnitus were due to "factors that occurred after leaving the service", the examiner never identifies these factors and thus provides no rationale for this opinion. Moreover, this statement is wholly inconsistent with his statement in the original opinion that the Veteran did not have a history of post-service excessive noise exposure (thus indicating no post-service factors related to hearing loss). For all of these reasons, the Board finds the 2008 VA examiner's addendum opinions to have no probative value. On the other hand, as discussed above, the Veteran has competently and credibly testified as to experiencing hearing loss and tinnitus in service and since service. Therefore, the Board finds that the most competent and credible evidence of record is the Veteran's lay testimony regarding experiencing acoustic trauma, and bilateral hearing loss and tinnitus, during service and continually since service. The Veteran's lay testimony is bolstered by the 2008 VA examiner's original opinion which indicated that because the Veteran was exposed to excessive noise in service but had no history of post-service excessive noise exposure, and because his type of current hearing loss was consistent with exposure to excessive noise, it was at least as likely as not the Veteran's hearing loss was related to his active military service. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board finds that service connection is warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. As noted above, tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established based on continuity of symptomatology; however, the claim may be established if it is found that the disability had its onset in or is related to service or an event of service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a current diagnosis of tinnitus and the competent, credible and persuasive evidence of record sufficiently places the onset of this condition in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. After resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service and service connection is warranted. Bladder Cancer The Veteran asserts that his current residuals of bladder cancer are related to his active military service. Specifically, the Veteran contends that his bladder cancer was caused by his exposure to DDT and diesel fumes while performing his job duties in service. An October 2012 VA medical opinion notes the Veteran's history of exposure to DDT and diesel fuel in service. The opinion also indicates that the Veteran has a current diagnosis of transitional cell carcinoma of the bladder. The examiner opined that the Veteran's bladder cancer was less likely as not related to his active military service. The examiner noted that there was no reliable way of estimating the hours that the Veteran may have spent performing the duties related to exposure to DDT and diesel fuel. The examiner explained that he researched the medical literature on the possible relationship between DDT and bladder cancer and that there did not appear to be any relationship between DDT and bladder cancer in a search of relevant medical literature. He did note that there appeared to be a possible relationship between diesel fume exposure and bladder cancer. He noted that the Clean Air Task Force (a nonprofit dedicated to reducing atmospheric pollution through research, advocacy and private sector collaboration) and The World Health Organization are both concerned about the possible relationship of diesel fume/diesel exhaust to human cancers. The examiner stated that he could only find one article with sufficient cases to address the possible risk of exposure to diesel exhaust to bladder cancer. He stated that this article did a meta-analysis (aggregation of all the study results) of 35 relevant studies. The conclusions of the study were that 10 studies considered diesel exhaust exposure based on an exposure matrix or a similar approach. A positive dose-response relationship was suggested by a significant number of the studies but that there was some evidence of publication bias with a lack of small studies with null or negative results. The conclusion was that diesel exhaust may increase the occurrence of bladder cancer but the effects of misclassification, publication bias, and confounding cannot be fully taken into account. The examiner stated that the study found that high exposure to diesel exhaust in railroad workers and bus drivers may have increased the risk of bladder cancer over the usual rate by 13 percent in a population of males without documented amounts of diesel exposure. He noted that the authors of the study said, however, that this increase in bladder cancer cannot be firmly attributed to diesel fume exposure because of effects of misclassification, publication bias, and confounding when they combined the results of the 35 studies that were done with different populations and criteria for diesel exposure. The examiner concluded that although there is some preliminary evidence for an increase in bladder cancer from high diesel fume exposure in this meta-analysis study, the results are tentative. He explained that the amount of increased risk for the development of bladder cancer from exposure to diesel fumes is preliminary and not well quantified, i.e. how much exposure to diesel fumes is necessary to firmly increase the risk of bladder cancer. The examiner stated that since we do not know the duration of this Veteran's spraying time of diesel mist while on active duty, and the studies are preliminary for the establishment of the possible higher risk of bladder cancer with exposure to diesel exhaust, and there is an approximately 40 year time period between this Veteran's diesel fume exposure and his diagnosis of bladder cancer, he opined that it is less likely than not that the Veteran's bladder cancer was caused by his exposure to diesel fume/spray while on active duty. The Board finds this opinion is adequate as it takes into account the Veteran's competent and credible allegations regarding exposure to DDT and diesel fuel fumes/mist and because the examiner provides a very thorough rationale for his opinion with extensive citation to available medical literature. There are no contrary medical opinions of record. The Board acknowledges the Veteran's lay statements regarding his belief that his bladder cancer was caused by exposure to DDT and/or diesel fuel fumes/mist in service, and the Board does not doubt the Veteran's sincerity in this belief. However, as a lay person with no medical training, the Veteran is not competent to provide an etiology opinion on such a complex medical issue. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). As such, the Board finds the competent medical opinion has higher probative value than the Veteran's lay statement regarding etiology. Accordingly, the evidence weighing against the Veteran's claim outweighs the evidence in support of the Veteran's claim. It follows that entitlement to service connection for bladder cancer is not warranted. At this time, the Board acknowledges that the Veteran originally contended this disability was due to exposure to "herbicides." See undated statement received in 2008. It is also acknowledged that there are special presumptions for Veterans who were exposed to herbicides in service. See generally 38 C.F.R. §§ 3.307, 3.309. Review of the Veteran's written statements and Board hearing testimony reveals, however, that the Veteran is claiming that his bladder cancer is due to exposure to DDT and diesel fuel fumes in service. Moreover, the Veteran's service personnel records do not reflect service in areas known for herbicide use from 1956 to 1960. As such, the Board finds that no consideration of service connection under this theory of entitlement is warranted. Neither the record nor the Veteran's appellate assertions substantiate such a review. In sum, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bladder cancer, and the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bladder cancer is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs