Citation Nr: 1642237	
Decision Date: 11/02/16    Archive Date: 11/18/16

DOCKET NO.  14-23 423	)	DATE
	)
	)

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


THE ISSUE

1. Entitlement to service connection for non-Hodgkin's lymphoma due to Agent Orange Exposure.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his wife



ATTORNEY FOR THE BOARD

Eric Struening, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1965 to July 1967.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO) rating decision in May 2013 that inter alia, (1) denied entitlement to special monthly compensation based on Aid and Attendance/Housebound status, (2) denied service connection for  non-Hodgkin's lymphoma, (3) denied service connection for bilateral hearing loss, and (4) denied service connection for tinnitus.  

The only issues currently before the Board are entitlement to service connection for non-Hodgkin's lymphoma, bilateral hearing loss, and tinnitus.

In August 2016, a video conference hearing was held before the undersigned; a transcript of the hearing is associated with the record.    

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. Exposure to herbicides is established based on the evidence of record.

2. Competent medical evidence establishes that the Veteran's non-Hodgkin's lymphoma is causally related to his exposure to herbicides in service.

3. The Veteran has a current bilateral hearing loss disability which is related to his active duty service.

4. The Veteran's tinnitus is reasonably shown to be related to his active duty service.


CONCLUSION OF LAW

1. Service connection for non-Hodgkin's lymphoma is warranted.  38 U.S.C.A. §§ 1101, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015).

2. Service connection for bilateral hearing loss is warranted.  38 U.S.C.A. §§ 1101, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).

3. Service connection for tinnitus is warranted.  38 U.S.C.A. §§ 1101, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA) applies to the instant claims.  However, inasmuch as the benefits sought are being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless.

Legal Criteria, Factual Background, and Analysis 

The Board notes it has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81   (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or does not show, as to the claim.

Service Connection in general


Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a).

Some chronic diseases (including sensorineural hearing loss) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time after service (one year for sensorineural hearing loss).  38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309.  When certain chronic diseases are at issue, such as sensorineural hearing loss, tinnitus, or any other disease enumerated at 38 C.F.R. § 3.309 (a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159 (a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a)(2).  This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative 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 (b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Non-Hodgkin's Lymphoma

The Veteran asserts that he has non-Hodgkin's lymphoma due to exposure to Agent Orange from handling equipment that had been in Vietnam.  There is no dispute that the Veteran now has non-Hodgkin's lymphoma. 

VA regulations provide that certain diseases associated with exposure to herbicide agents (including non-Hodgkin's lymphoma) may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309 (e) (2015).

If a Veteran was exposed to an herbicide agent during active service, certain diseases shall be presumptively service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) 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.  38 C.F.R. § 3.309 (e).  Such diseases shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii).

A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307 (a).

Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In this case, the Veteran's service personnel records show that he was not stationed in Vietnam, but in Germany (during the Vietnam Era).  As such, the presumption of Agent Orange exposure does not apply.  

Nonetheless, the presumption of service connection for Agent Orange exposure may still apply if it can be established that the Veteran was exposed to Agent Orange during service.  See 38 C.F.R. § 3.307 (a)(6).  In this case, the Veteran provided competent and credible testimony at the August 2016 videoconference hearing that, while in service, he worked on tanks and other machinery that had been sprayed with Agent Orange.   These statements are both competent and credible evidence that the Veteran was exposed to Agent Orange during service.  

With exposure to Agent Orange established, because it is presumed that non-Hodgkin's lymphoma results from Agent Orange exposure, a causal linkage to service is established and there is no affirmative evidence to the contrary.  The Board also notes that in an August 2013 VA treatment note a VA physician opines that the Veteran's "lymphomas are the type of lymphomas known to be associated with Agent Orange exposure."  Accordingly, service connection for non-Hodgkin's lymphoma is warranted.  38 C.F.R. § 3.307.

Bilateral Hearing Loss

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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.  The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  

The Veteran reports that his bilateral hearing loss began during service and was caused by noise exposure from working as a tank mechanic. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) while on active duty was auto mechanic.

At the August 2016 videoconference hearing, the Veteran testified that he experienced in-service noise exposure due to his job as a mechanic.  The Board sees no reason to question the credibility of the Veteran's testimony, and finds that exposure to acoustic trauma has been established.

His service treatment records (STRs) did not include any reports of hearing problems.

On April 1965 service entrance examination, puretone thresholds, in decibels were:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
-5
10
-5
LEFT
15
0
0
-5
-5


On May 1967 service separation examination, puretone thresholds, in decibels were:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
-5
LEFT
0
0
0
-5
0






On January 2013 VA audiological examination, puretone thresholds, in decibels were:





HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
65
75
80
LEFT
50
55
60
70
65

Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 88 percent in the left ear.  Based on this examination, the examiner diagnosed the Veteran with mixed hearing loss. The examiner opined that the current hearing loss is less likely than not due to noise exposure in service because hearing on May 1967 service separation examination was within normal limits.

On April 2013 VA addendum opinion, the consulting physician also opined that the Veteran's normal separation audiogram "precludes connecting the Veteran's present hearing loss with acoustic trauma during active duty, while service in the capacity of a tank mechanic."

At the August 2016 videoconference hearing, the Veteran's wife testified that she has known the Veteran since 1969 (approximately two years after separation from service), and within a month of knowing him noticed he was having trouble hearing.  She also testified that he had problems hearing his children when they were young.

Because audiometric testing on January 2013 VA examination revealed sensorineural hearing loss (in accordance with 38 C.F.R. § 3.385) in each ear, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss.

The Board finds that the January 2013 VA examination and the April 2013 VA addendum opinion to be inadequate.  Both opinions only offered for their negative opinion was the Veteran's normal audiometry at separation.  Under governing caselaw, service connection for hearing loss is not precluded where hearing was within normal limits on audiometric testing at separation from service.  See Hensley v. Brown, 5 Vet. App. 155 (1993).

However, the Board finds that the testimony of the Veteran and his wife is competent and credible evidence that his hearing loss began during active duty and has existed since that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Therefore, the Board finds that the competent evidence of record reasonably supports the Veteran's claim that he has suffered from bilateral hearing loss ever since service. See 38 C.F.R. § 3.303 (b).  His statements with regard to suffering in-service acoustic trauma are supported by his MOS, and as noted above, the evidence establishes that the Veteran was exposed to loud noise in service.

Resolving reasonable doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that medical evidence, as well as the Veteran's competent and credible statements about his in-service experiences and his in-service and post-service symptoms, all support a finding that the Veteran's bilateral hearing loss began in service and has persisted since that time.  Accordingly, service connection for bilateral hearing loss is warranted.

Tinnitus 

The Veteran states that he has tinnitus that is related to his active duty service. It is not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it).  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Board finds no reason to question the Veteran's accounts that he experiences ringing in his ears.  As noted above, the evidence also establishes that the Veteran was exposed to loud noise in service.

What remains necessary to substantiate the claim of service connection for tinnitus is evidence of a causal linkage between the in-service noise exposure and the Veteran's current tinnitus.

Following a January 2013 VA examination, the examiner opined that the Veteran's tinnitus was (at least as likely as not) caused by or a result of military noise exposure because the Veteran had worked as a tank mechanic during service and was exposed to tank noise without hearing protection.

In an April 2013 addendum, the examiner wrote that there is no basis to link the Veteran's tinnitus to service because "there is no evidence that he sustained cochlear damage, secondary to acoustic trauma while on active duty despite his MOS."  [The Board finds this addendum opinion is of lessened probative value, as discussed below.]

The Board notes that there is medical evidence of record both in support of, and against, a finding that the Veteran's tinnitus is related to his active duty service.  The Board must analyze the credibility and probative value of evidence, account for the persuasiveness of evidence, and provide reasons for rejecting 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).

In this case, the Board finds the January 2013 VA examination opinion in in support of the claim more probative than the negative April 2013 VA addendum opinion because the initial examination opinion is supported by a clear rationale explaining the reasoning behind the medical conclusions.  The addendum opinion, on the other hand, is assigned less probative value because it relies on an absence of evidence and considers neither the Veteran's credible reports of tinnitus symptoms since service nor the acoustic trauma he experienced in service as a result of his MOS as a tank mechanic.  Nor does the examiner provide an explanation for the conflict between the two opinions.  Accordingly, the medical and lay evidence weighs in favor of finding that the Veteran's tinnitus is related to his military service and that service connection is warranted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.  






ORDER

Entitlement to service connection for non-Hodgkin's lymphoma is granted.

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.




____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs