Citation Nr: 1325462 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 12-20 047 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for renal clear cell carcinoma, status post right nephrectomy, now metastasized to multiple parts. 2. Entitlement to service connection for promyelocytic leukemia. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Andrew R. Rutz, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to February 1972, including service in the Republic of Vietnam. He was awarded the Vietnam Campaign Medal, among other decorations, for his service. These matters come before the Board of Veterans' Appeals (Board) from RO decisions of March 2009 and October 2011. The Board remanded the appeal in August 2012 to provide the Veteran with a hearing before a Veterans Law Judge. The hearing was held via videoconference before the undersigned Judge in November 2012. The Board obtained expert medical opinions from two physicians in the Veterans Health Administration in March 2013 and June 2013. 38 C.F.R. § 20.901(a). The Veteran and his attorney have been provided with copies of these opinions. The Veteran's attorney has requested a decision on the appeal as soon as possible. The appeal was advanced on the Board's docket in November 2012 due to the Veteran's failing health. It has received expedited treatment since that time. FINDINGS OF FACT 1. The Veteran's renal clear cell carcinoma, metastasized to multiple parts, was caused by exposure to helicopter fuels and herbicides during service. 2. The Veteran's promyelocytic leukemia was caused by exposure to helicopter fuels and herbicides during service. 3. No connection between bilateral hearing loss and the Veteran's service is shown in the evidence of record. CONCLUSIONS OF LAW 1. Service connection for renal clear cell carcinoma, metastasized to multiple parts, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for promyelocytic leukemia is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially 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). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a chronic disease such as an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations pertaining to Agent Orange exposure, which includes all herbicides used in Vietnam, provide that if a veteran served on active duty in Vietnam during the Vietnam era, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). Renal clear cell carcinoma and promyelocytic leukemia Historically, the Veteran served as a helicopter pilot in Vietnam during the Vietnam era. He is thus presumed under law to have been exposed to herbicides such as Agent Orange. He asserts that his currently-shown cancers were caused by such exposure. In light of the conclusions reached below, an exhaustive explanation of the VA's duties to notify and assist the Veteran in the development of these claims is not necessary. Similarly, although these claims were previously denied in 2008 and 2009, a complete description of the voluminous evidence of record is not deemed necessary, as there is more than sufficient evidence to reopen the claims and decide them on the merits. The Veteran initially developed renal cell carcinoma in 2000. The pathology report narrowed the diagnosis to a "clear cell type" of renal cell carcinoma. In 2006, he developed an unrelated, acute promyelocytic leukemia, which was successfully treated, and he continues on maintenance medication for this disease. The primary treatment for this disease suppressed his immune system to the point where he had a metastatic recurrence of the original renal cell carcinoma, to his brain, pancreas and multiple other areas, most recently including bony involvement in his left rib cage. According to a July 2013 statement from his attorney, he will enter into hospice care soon. The Veteran's treating oncologist has presented a medical opinion to the effect that she believes herbicide exposure in Vietnam is the cause of both types of cancer. In a March 2013 opinion based upon review of the Veteran's file, a VA oncologist opined that the cancers were probably not caused by exposure to herbicides, but that aromatic hydrocarbons to which the Veteran was exposed during the course of his active service duties as a helicopter pilot might have contributed to his cancer. Based upon this statement, the Board then obtained an informed opinion from a physician who is an expert in occupational and environmental medicine. This physician reviewed the Veteran's medical history and treatment records, and reviewed relevant medical literature. He cited medical literature which indicates a relationship between benzene and leukemia, and other studies indicating a carcinogenesis effect of both dioxin and benzene polymers resulting in carcinomas of the renal tract. He further determined that the Veteran has no risk factors for either type of cancer in his family, occupational, or social history, while there was reasonable and equivocal medical evidence that exposure to Agent Orange and helicopter fuel may be related to the two cancers. He concluded, "It is more likely that both acute promyelocytic leukemia and renal cell carcinoma are related to exposure to helicopter fuels" and Agent Orange during the Veteran's military service. The Board concludes that the evidence thus supports the Veteran's claims for service connection for renal clear cell carcinoma, including the metastases arising therefrom, and promyelocytic leukemia. The benefits sought are therefore granted. Bilateral hearing loss Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information as to his claim for service connection for bilateral hearing loss in an October 2008 letter prior to the RO decision on appeal. As noted above, the Veteran presented sworn testimony during a November 2012 Board hearing. The hearing was understandably focused upon the subject of his urgent cancers, however, and no testimony was provided as to his hearing loss claim. Veterans Law Judges who preside over hearings have a responsibility to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 at 492 (2010). In this case, no such discussion took place, because the hearing on appeal did not include any discussion of the Veteran's hearing loss. Regardless, we find no harm to the Veteran in this case, as there is no indication that the Veteran had any additional information to submit. Bryant, 498-99. Even if any harm could be identified, given the urgency of the Veteran's precarious health, and the importance of the grants of service connection for his terminal cancers, reached above, the Board finds that the delay inherent in offering the Veteran another hearing for the purpose of presenting testimony and discussing the issue and any potential supporting evidence could possibly render an extremely prejudicial delay in the adjudication of the more significant cancer claims. With regard to the VA examination report which is of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained in this case is adequate. The examination report relied upon was predicated on a review of the claims folder and the relevant medical records contained therein, contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms. The examiner considered the available pertinent evidence of record, and provided a rationale for the opinion rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service treatment records, VA treatment records, private medical records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Analysis The Veteran contends his bilateral hearing loss was caused by the acoustic trauma involved with flying helicopters on active duty. He has submitted a written statement and hearing testimony attesting that his primary noise exposure occurred on active duty, as he had mostly desk jobs, and positions which did not involve significant noise exposure after service. That the Veteran has current bilateral hearing loss is established in the record. See 38 C.F.R. § 3.385. However, the claim must be denied because bilateral hearing loss is not demonstrated in the record during service or within a year of discharge from service, and no other connection to service is shown in the evidence of record. 38 C.F.R. § 3.303. The Veteran's service treatment records, to include the reports of his periodic flight status medical examinations, reflect normal hearing during service. National Guard records dated after service in 1973 and 1975 also reflect normal hearing by VA standards. The Veteran was provided with a VA audiological examination in November 2008. In addition to clinical testing and examination, the examiner reviewed the Veteran's service treatment records and noted that his hearing was within normal limits throughout service. He then opined that based upon the documentation of normal hearing at induction and separation from service, it is less likely that the Veteran's current hearing loss could be related to his military service. Absent any indication of hearing loss during service or within one year of service, there is no basis for finding that the Veteran's currently-shown hearing loss had its inception during service, or for presuming under law that an organic disease of the nervous system causing his hearing loss began during service. Service connection on a direct basis and on a presumptive basis must therefore be denied. The record contains no medical evidence or other information that would tend to refute the opinion provided by the November 2008 VA examiner. The preponderance of the evidence is thus against the Veteran's claim for service connection for bilateral hearing loss. The benefit of the doubt doctrine is inapplicable and the appeal must be denied. ORDER Service connection for renal clear cell carcinoma, now metastasized to multiple parts is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for promyelocytic leukemia is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for bilateral hearing loss is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs