Citation Nr: 1343032 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-19 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection or bilateral hearing loss disability. 2. Entitlement to service connection for prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The Veteran was afforded a hearing before a Decision Review Officer (DRO) of the RO in January 2011. A transcript of the hearing is in the claims file. The issue of entitlement to service connection for prostate cancer is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Hearing loss disability was not present in either ear until more than one year after the Veteran's discharge from service, and no current hearing loss disability is etiologically related to service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active duty, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303; 3.307; 3.309; 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in July 2009, prior to the initial adjudication of the claim. The Board also finds that the duty to assist has been met. The Veteran's service treatment records, relevant service department records, and private medical records have been obtained. The Veteran was also provided with a VA examination to determine the nature and etiology of his hearing loss. The Board has determined that the report of the VA examination is adequate for adjudication purposes. The record reflects that in addition to examining the Veteran, the examiner reviewed his pertinent history. Although the examiner was unable to provide an opinion concerning the etiology of the Veteran's hearing loss, he properly explained why he was unable to do so. In this regard, the Board has considered the Court's holding in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate, as a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Here, the examiner fully explained the bases for the conclusion. The examiner noted that even after considering the Veteran's in-service noise exposure, and all the other available facts in the Veteran's file, any opinion rendered would be speculative due the lack of audiometric test results at separation. The examiner explained that the Veteran's separation report contains only whisper test results, "which do not provide frequency and intensity specific information." Given the thorough reasoning outlined by the VA examiner, the Board finds the examination report with addendum to be adequate under Jones. As part of the duty to assist, the Veteran was also afforded a DRO hearing pursuant to his request. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) of the Board or local DRO at the RO chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Here, during the January 2011 DRO hearing, the DRO effectively outlined the issues on appeal and suggested that any evidence tending to support the claims that had not yet been submitted should be, which necessarily included in this case evidence of current hearing loss disability and any causal link between the Veteran's service and any such hearing loss. To the extent this was not done by the DRO, the Veteran and his representative at the hearing demonstrated sufficient actual knowledge of what was required. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the DRO hearing. In sum, the Board is satisfied that the RO has complied with VA's duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. III. Factual Background and Analysis The Veteran is currently seeking service connection for bilateral hearing loss. He served on active duty from April 1963 to April 1967. During service, the Veteran worked as a Boatswain's mate. In January 2011, he testified at a DRO hearing asserting that while in service he was exposed to noise from large caliber guns, without wearing hearing protection. Specifically, the Veteran reported that he believed that his hearing loss was caused by his service, starting in 1965, aboard the U.S.S. Hector. The Board has found the Veteran to be credible reporting his history of in-service noise exposure; and, in addition, his alleged noise exposure is consistent with the conditions of his service. However, to the extent that the Veteran is claiming that he developed hearing loss in service, the Board has not found him to be credible. In this regard, the Board notes that service treatment records do not show that the Veteran was found to have hearing loss in either ear or that he complained of hearing loss. In addition, the report of examination for separation shows that his ears were found to be normal on clinical evaluation and that his hearing was found to be normal on the whispered voice test. In his original claim for service connection filed in August 1967, he did not claim entitlement to service connection for hearing loss. In fact, he filed no such claim until more than 40 years following his discharge from service. Therefore, the Board concludes that the preponderance of the evidence establishes that hearing loss disability was not present in service. The evidence does not show, and the Veteran has not specifically alleged, that his hearing loss disability manifested to a degree of 10 percent or more within one year from the date of termination of such service . With respect to the etiology of the hearing loss, the Board notes that the Veteran was provided a VA examination in November 2009. In the examination report, the examiner stated that an opinion could not be provided without resorting to speculation. The examiner explained that the Veteran's separation report contained only whisper test results, "which do not provide frequency and intensity specific information." The Veteran has expressed his disagreement with the examiner's conclusion; and during the January 2011 DRO hearing, he was advised to consult a medical professional to obtain an independent assessment of the etiology of his hearing loss. The Veteran requested an extension to obtain said rebuttal evidence; however, he has failed to do so. In fact, there is no competent evidence of record linking the Veteran's hearing loss to in-service noise exposure. The Board recognizes the assertions the Veteran and his spouse, linking his hearing loss to in-service noise exposure. While they might sincerely believe that his hearing loss is related to the in-service noise exposure, there is no indication that the Veteran or his spouse has the expertise required to render a competent opinion concerning the etiology of his hearing loss. Therefore, their lay opinions concerning this matter requiring medical expertise is of no probative value. Accordingly, service connection for bilateral hearing loss disability is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss disability is denied. REMAND The Board's review of the record reveals that further development is warranted before the Board decides the Veteran's claim for service connection for prostate cancer. The Veteran seeks service connection for prostate cancer, which he argues is due to in-service exposure to herbicides, asbestos, or other chemicals. The Veteran's representative also asserts, in an appellate brief, that the Veteran's current disability manifested in service and that the symptomatology persisted post-service. Specifically, the representative notes that service treatment records show that in May 1965 the Veteran reported and was treated for blood tinged seepage from his urethra, that the right lobe of the Veteran's prostate was slightly enlarged but non-tender, and that the Veteran had a history of uretheritis. Further examination of the service treatment records reveal an April 1963 diagnosis of and treatment for acute uretheritis due to gonococci. The symptom noted at that time was urethral discharge of three days' duration. Similarly, in October 1965 the Veteran complained of and sought treatment for blood in his urine. No urethral discharge was reported, and the report notes that the Veteran had a history of "strain and uretheritis." A urinalysis was conducted and uretheritis was diagnosed. The Veteran was afforded a VA examination in October 2012 to determine the etiology of his prostate cancer. The examiner reviewed the claims file, interviewed and examined the Veteran, and researched current medical reference material. Thereafter, the examiner opined that the Veteran's prostate cancer was not caused by his claimed chemical exposure in-service. However, the examiner did not opine whether the Veteran's current prostate disability was otherwise related to service, to include the urethritis noted in the service treatment records in April 1963, May 1965, and October 1965. Accordingly, the originating agency should obtain an addendum VA medical opinion with supporting rationale to clarify the etiology of the Veteran's prostate cancer. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Then, the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be provided to and reviewed by the VA examiner who performed the October 2012 VA examination. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should be requested to provide an opinion, consistent with sound medical principles, as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's current prostate disability began during service or is otherwise etiologically related to the Veteran's active service. The examiner should acknowledge and discuss the in-service complaints and treatments noted in April 1963, May 1965, and October 1965. The examiner must also provide the rationale for each opinion expressed. If the examiner is unable to provide any requested opinion, he should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he should explain why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the October 2012 VA examiner is not available, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to another physician with sufficient expertise, who should be requested to review the record and provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs