Citation Nr: 1722416 Decision Date: 06/16/17 Archive Date: 06/29/17 DOCKET NO. 13-28 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD. 4. Entitlement to service connection for prostate cancer, to include as due to herbicide and radiation exposure. 5. Entitlement to respiratory problems, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Timothy R. Franklin, Attorney ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Air Force from June 1970 to October 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office. A pre-hearing conference was held with the Veteran's representative in May 2017. The issues of entitlement to service connection for bilateral hearing loss and for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was exposed to herbicides during active duty service in Thailand, and subsequently developed prostate cancer. 2. The probative, competent evidence demonstrates that tinnitus is causally or etiologically related to active duty service. 3. In a May 2017 written statement, the Veteran through counsel withdrew his claim for entitlement to service connection for respiratory problems to include as due to asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for respiratory problems to include as due to asbestos exposure have been met. 38 U.S.C.A. § 7105(b), (d) (West 2014); 38 C.F.R. § 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Through counsel in May 2017 the Veteran withdrew his appeal of the issue of service connection for respiratory problems to include as due to asbestos exposure. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and it is dismissed. Tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Tinnitus is considered an organic disease of the nervous system and qualifies as a chronic disease under 38 C.F.R. § 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran asserts that he has tinnitus as a result of noise exposure during active duty. Specifically, the Veteran told the VA examiner in 2012 that he had intermittent tinnitus that had been present for the past 10 to 12 years. He asserted that it occurred monthly and lasted for a few seconds. The Board notes that the Veteran's military occupational specialty was that of a munitions officer. Although there is no evidence of a medical diagnosis of tinnitus, the Veteran reported experiencing ringing in his ears on a consistent basis. The Board finds that such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability of tinnitus for service connection purposes. With respect to an in-service injury, event, or illness, service treatment records are negative for any complaints of, treatment for, or diagnosis of tinnitus. However, the Veteran's service personnel records indicate that he was in stationed in close proximity to large engines and helicopters. The Veteran reports that he was regularly exposed to high noise levels during service. The Veteran's descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). Accordingly, the Board finds the Veteran has established an in-service event for the purpose of service connection. With respect to a nexus between the Veteran's tinnitus and the in-service noise exposure, the Board affords limited probative weight to the negative opinion of the VA examiner who examined the Veteran in connection for his claims of bilateral hearing loss and tinnitus in February 2012. In the report, the VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because his hearing was normal. The Board notes that the VA examiner did not provide sufficient rationale for the stated opinion. Based on the minimal rationale as evidenced by the lack of medical support, the Board affords this opinion limited probative weight. Conversely, the Board affords the Veteran's own statements significant probative weight. During his VA examination in February 2012, the Veteran reported consistent ringing in the ears. Moreover, in his lay statements the Veteran has consistently reported that the ringing in the ears occurred after separating from service. Although there has been some question as to when the Veteran began experiencing symptoms, the Board finds that the Veteran is competent and credible to report the symptoms of his tinnitus, and that he has invariably reported that it began during service. See Layno, 6 Vet. App. at 469 (a veteran's lay statements may be sufficient evidence in any claim for service connection). The Board finds that the Veteran has established continuity of symptomatology of tinnitus. Tinnitus is a chronic disease for purposes of 38 C.F.R. § 3.309. See Fountain, 27 Vet. App. 258. Given the Veteran's in-service noise exposure and reports that he began experiencing tinnitus after separation from service, the Board finds the probative, competent evidence demonstrates that tinnitus is causally or etiologically related to active duty service and that the Veteran's current tinnitus had its onset during active duty. Therefore, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Prostate Cancer Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or along the Korean Demilitarized Zone between April 1, 1968, and August 31, 1971, shall be presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307(a) (6). M21-1, Part IV, Subpart ii, Ch.2, Sec. C, Para. 10(q) provides additional information regarding developing evidence of herbicide exposure in claims from veterans with Thailand service during the Vietnam Era and information concerning herbicide use in Thailand. A Memorandum for the Record reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base (RTAFB). Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. These materials provide that if a claimed herbicide exposure cannot be resolved based on the information contained in the memorandum, then follow-up inquiries should be sent to the Joint Services Records Research Center (JSRRC). Furthermore, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 Bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. VA's Adjudication Procedures Manual indicates that if a veteran served at a RTAFB as an Air Force security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure may be established on a direct/facts-found basis. M21-1, Part IV, Subpart ii, 1.H.5.b. The Veteran has asserted that he was exposed to the herbicide Agent Orange during service in Thailand during 1973 to 1974. He has alternatively contended that he was exposed to nuclear radiation during his special duty assignment in Greece from 1974 to 1976. The Veteran asserts that such exposure resulted in his prostate cancer. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). As the Board finds that the Veteran was exposed to herbicides while in Thailand, the contention of being exposed to radiation will not be considered. 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure in service for enumerated diseases manifested to a degree of 10 percent or more within a specified time period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313, 3.318 (2016). The exclusive list of diseases which are covered by this presumption includes prostate cancer. 38 C.F.R. § 3.309(e). The extensive medical records in the claims file reflect the Veteran has carried the diagnosis of prostate cancer. As such, the Board does not dispute that the Veteran has prostate cancer. Therefore the Board finds the primary issue in this case is determining whether the Veteran was exposed to herbicides during any service in Thailand. The Veteran was assigned the duty of Weapons Flightline Loading Officer, but he was also given the additional duty of managing the equipment to include inspection, deconstruction, rehabilitation, and reassembly. The Veteran described his duties at Udorn RTAFB which included going to the perimeters and barracks areas to inspect vehicles and loading weapons for combat. He described the different equipment he had to repair and noted that all of the equipment was exposed to herbicides in storage in the warehouses. He has asserted that his exposure to Agent Orange was from physical contact or breathing fumes from drums that leaked herbicides and that handling this material and being exposed to it was commonplace for him as a Weapons Officer. The record does not show this explicitly, but the documented evidence makes it at least as likely as not that he was near the base perimeters in Thailand and in contact with Agent Orange as described. He has consistently asserted that he came into contact with a substance he believed to be Agent Orange regularly as part of his duties. The Board finds these lay statements credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The evidence suggests that the Veteran was in a location which would expose him to herbicides, and upon application of the benefit of the doubt, the Board finds that he was exposed to herbicides based on the particular circumstances of his case. Given that prostate cancer is presumptively associated with exposure to herbicides agents and that the Board has found exposure to herbicides, service connection for prostate cancer is warranted. 38 C.F.R. § 3.309(e); Gilbert, 1 Vet. App. 49. This decision granted the Veteran's claims for entitlement to service connection for tinnitus and for prostate cancer in this decision. Therefore, there is no need to discuss the Board's duties to notify and assist. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for prostate cancer, to include as due to herbicide and radiation exposure is granted. Entitlement to service connection for a respiratory disorder to include as due to asbestos exposure is dismissed. REMAND Remand is necessary for proper development of the issues. As it pertains to the Veteran's claim for entitlement to service connection for bilateral hearing loss, the Board notes that the Veteran underwent VA examination in connection with his claim in February 2012. At the time, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by service. Upon review, the Board finds that this opinion is inadequate for purposes of determining service connection as it lacks a sufficient rationale. The VA examiner also did not address the Veteran's competent lay assertions that he first began to experience hearing loss as a result of noise exposure during service. See Buchanan, 451 F.3d at 1337. As such, the Board finds remand is warranted in order to obtain an addendum opinion. See Barr, 21 Vet. App. at 311. As it pertains to the Veteran's claim for entitlement to service connection for hypertension, the Veteran initially claimed that this disability was due to active duty service. This claim was denied in the March 2009 rating decision because there was no in-service event or injury to provide a nexus between the current disability and active duty service. Since that time, the Veteran has asserted that his hypertension is caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). Therefore, on remand the RO should provide proper notice pertaining to the requirements of secondary service connection, and an additional VA examination should be scheduled to consider the theory of secondary service connection. Barr, 21 Vet. App. at 311. The Veteran receives continuous treatment through VA, and the Board finds that the AOJ should obtain and associate with the file VA treatment records dated from December 2016 to present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from December 2016 to present. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Forward the Veteran's claims file to the February 2012 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion which addresses the Veteran's competent lay statements pertaining to his hearing loss. If necessary, schedule the Veteran for another audiological examination. After a review of the evidence and with specific consideration of the Veteran's competent lay statements regarding his symptoms and their onset, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current hearing loss disability began in service, was caused by service, or is otherwise related to service. The examiner should comment on all diagnoses of record. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 2. Schedule the Veteran for another VA examination to determine the current nature and etiology of his hypertension. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence and with consideration of the Veteran's lay statements regarding his symptoms and their onset, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current hypertension disability began in service, was caused by service, or is otherwise related to service. Additionally, if the examiner does not find that hypertension is directly related to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that hypertension was caused or aggravated by the Veteran's service-connected PTSD. A complete rationale should be provided for any opinion or conclusion expressed. 3. After all development has been completed, re-adjudicate the claims of entitlement to service connection for bilateral hearing loss and hypertension. If any benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs