Citation Nr: 1620205 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 13-36 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bladder cancer to include as due to herbicide exposure. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a videoconference hearing in front of the undersigned Veteran's Law Judge (VLJ) in July 2014. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam, and he is presumed to have been exposed to herbicides (Agent Orange) during such service. 2. The evidence of record is in relative equipoise as to whether the Veteran's bladder cancer is etiologically related to service, to include as due to herbicide exposure. 3. The evidence of record is in relative equipoise as to whether the Veteran's bilateral hearing loss disability is etiologically related to service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for service connection for bladder cancer have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify and assist The VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the Board's grants of service connection below, further discussion of the duty to notify and assist is not required. Service Connection In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, a Veteran who, during active military, naval, or air 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 such Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 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 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include Type 2 diabetes; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Bladder cancer is not included in the list of enumerated diseases. VA has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Additionally, presumptive service connection may not be established under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure if the cancer developed as the result of metastasis of a cancer that is not associated with herbicide exposure. See VAOPGCPREC 18-97, 62 Fed. Reg. 37954 (1997); see also Darby v. Brown, 10 Vet. App. 243 (1997). Despite the presumptive regulations, a Veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bladder cancer The Veteran asserts entitlement to service connection for bladder cancer as due to Agent Orange exposure while on active duty in Vietnam. See July 2014 Board hearing transcript and Veteran's statement undated, with cover page dated August 16, 2011. The record indicates the Veteran served in Vietnam and he is presumed to have been exposed to herbicides such as Agent Orange. See e.g., military personnel record of assignments, with relevant organization and station or theater indicated as the 39th Engineer Battalion in Vietnam and Request for Information response dated June 6, 2011 indicating service in Vietnam from November 26, 19677 to November 24, 1968. The Veteran has a current diagnosis of bladder cancer. See March 2012 VA examination. As noted above, the Veteran's bladder cancer is not included on the enumerated list of diseases under 38 C.F.R. 3.309 (e). Service connection on a presumptive basis is not warranted. Therefore, and the Board's analysis is limited to entitlement to service connection based on a link between the Veteran's current bladder cancer and exposure to Agent Orange on a direct basis. The record contains both positive and negative evidence regarding a nexus between the Veteran's in-service herbicide exposure and his bladder cancer. Three physicians have provided positive nexus opinions between the condition and service. In a January 26, 2011 letter, a private urologist stated the Veteran's bladder cancer "may be related" to chemical exposure during military service in Vietnam. The same private urologist who wrote the aforementioned letter provided a positive opinion with further rationale in a letter dated August 1, 2014. The physician stated that few studies had been conducted to consider the possibility of bladder cancer being associated with Agent Orange exposure, but studies on the prostate had been undertaken and noted that the VA had recognized prostate cancer as casual to Agent Orange exposure. The prostate and bladder were so intimately connected; it was his opinion that studies of the bladder, if conducted as they were the prostate, would show linkage to Agent Orange. A private primary internist submitted a letter dated August 11, 2014. The physician stated that Agent Orange likely caused his bladder malignancy and rationed that Agent Orange is a known carcinogen which would be excreted through the kidneys and concentrated in the bladder, and the Veteran had no significant smoking history. Thus, it was at least as likely as not bladder cancer was caused by Agent Orange exposure. An October 14, 2015 VHA examiner provided a positive opinion but explained that in 2012 there was inadequate/insufficient evidence to determine whether an association between bladder cancer and Agent Orange existed. He further explained that cigarette smoking and workplace exposures could act together to cause bladder cancer. The Veteran had been a 10 year smoker at some point in his life but he was also exposed to Agent Orange and possible other unknown toxins while in Vietnam. The VA examiner cited to another Board decision from 2007 with evidence from a well-known private bladder cancer specialist where service connection was granted for bladder cancer as secondary to Agent Orange. However, to the extent the opinions relies on another Board decision which granted service connection for bladder cancer in providing a positive opinion, the opinion is afforded low probative weight. Negative evidence includes an opinion from a December 16, 2015 VHA examiner who initially opined he was not able to conclude that his bladder cancer was directly related to Agent Orange exposure any more with this patient than with others and cited a lack of data in providing the opinion. Upon request for clarification, the same VHA examiner provided a negative nexus addendum opinion in January 20, 2016 citing that there was no sufficient information supporting cause and effect between bladder cancer and Agent Orange. Although it does not appear any opinion definitively attributes the Veteran's bladder cancer to in-service herbicide exposure without some use of speculation, the positive opinions suggest a nexus is likely. The statements from the Veteran in support of the claim are entitled to low probative weight as they are not competent to provide an etiological link between herbicide exposure and bladder cancer. In considering the evidence of record, the Board finds that the medical evidence of record for and against the claim is in relative equipoise. Resolving doubt in favor of the Veteran, service connection for bladder cancer is granted. Hearing loss The Veteran contends that he has bilateral hearing loss disability due to significant noise exposure during service. Specifically, he contends exposure from various sources while on active duty including weapons fire during training courses, noise from timber trestle bridges, from service in Vietnam as platoon leader including noise from equipment such as bulldozers, front end loaders, earth movers, scarpers, cement mixers and loaded dump trucks. See July 2014 Board hearing transcript and Veteran's statement undated, with a cover page dated August 16, 2011 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, 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has a current hearing loss disability. See March 2012 VA audiological examination. As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated hearing loss disability of either ear to a compensable degree within one year of discharge from active duty. As such, service connection for hearing loss disability cannot be granted on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran's military occupational specialty (MOS) was a combat engineer with a related civilian occupation listed as a blaster with service in Vietnam. See DD-214 and Request for Information response dated June 6, 2011. His record is generally consistent with his assertions as to acoustic trauma in service, described above. As such, the Board finds that the Veteran was exposed to acoustic trauma during service. The record contains both positive and negative evidence regarding a nexus between the Veteran's current hearing loss disability and service. Although the Veteran is not competent to provide opinions regarding the etiology of his condition, he provided competent and credible statements of noise exposure in-service. STRs reflect the Veteran had normal hearing at his exit examination. See November 1968 VA exit examination. An August 2014 private audiologist provided a positive nexus opinion after a discussion with the Veteran regarding his in-service noise exposure and a review of his audiograms prior to service and upon discharge. Although hearing tests fell within normal range, the discharge hearing examination in November 1968 already started showing some subtle decreases in his hearing at 500 and 1000 hertz on both ears and 4000 Hertz as well if you compared it to an earlier hearing test from entry into the military, and that subtle loss was not evident in his first hearing test. Acoustic trauma could significantly hasten and damage hearing and deteriorate it quicker and make any further hearing loss significantly worse, which he believed occurred to his Veteran. In contrast, a March 2012 VA examiner provided a negative nexus opinion and rationed that the Veteran's November 1968 separation audiogram showed hearing sensitivity within normal limits in both ears with no significant decrease in hearing, relative to the September 1965 enlistment audiogram. The asymmetric nature of the hearing loss seen on the current examination was not consistent with the reported loud noise exposure while in-service. In considering the evidence of record, the Board finds that the medical evidence of record for and against the claim is in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement of service connection for hearing loss disability is granted. ORDER Entitlement to service connected for bladder cancer is granted. Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs