Citation Nr: 1800554	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-18 308	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for prostate cancer due to Agent Orange exposure.

3. Entitlement in an increased rating for tinnitus, currently evaluated as 10 percent disabling. 


REPRESENTATION

Veteran represented by:	Rhett D. Klok, Attorney 


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1971 to February 1975. The Veteran served at U-Tapao Royal Thai Air Force Base in Thailand from August 1971 to August 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In November 2016, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. 

A review of the Veteran's claims file revealed that the Veteran submitted additional evidence with regard to his claim of entitlement to service connection for prostate cancer due to Agent Orange exposure in November 2016 without a waiver of AOJ initial review. Generally, a waiver is necessary prior to the Board reviewing such evidence in the first instance. See 38 C.F.R. § 20.1304 (c). However, as the Board is granting the Veteran's claim of entitlement to service connection for prostate cancer due to Agent Orange exposure in full, there is no prejudice in the Board reviewing this evidence in the first instance.


FINDINGS OF FACT

1. The Veteran did not exhibit bilateral hearing loss in service or within one year after discharge from service, and bilateral hearing loss is not otherwise shown to be associated with his active service.

2. The evidence is in relative equipoise as to whether the Veteran's prostate cancer is attributable to Agent Orange exposure during service.

3. The Veteran's tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code (DC) 6260.


CONCLUSIONS OF LAW

1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2. Resolving reasonable doubt in the Veteran's favor, his prostate cancer was incurred in active duty service.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017).

3. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

In a July 2011 letter, VA notified the Veteran of the evidence required to substantiate his claim. The Veteran was informed of the evidence VA would attempt to obtain and of the evidence that the Veteran was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal.

II. Service Connection 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active service or, if preexisting such service, was aggravated thereby.  38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017).

Generally to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b) (2016); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

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.

With regard to service connection for disabilities incurred as a result of herbicide exposure, if a veteran was exposed to an herbicide agent during active, naval, or air service, certain diseases, including prostate cancer, shall be service-connected if the requirements of § 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 § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307 (d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air 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 (d)(6)(iii). 

VA's Compensation Service (C&P) issued guidance 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 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 entitled "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. 

Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including U-Tapao Royal Thai Air Field Base. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if: (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her service occupational specialty (MOS), performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security.

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 Veteran. 38 U.S.C.§ 5107 (b); 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Bilateral Hearing Loss

The Veteran contends that his bilateral sensorineural hearing loss is a result of his service. 

The existence of a present disability is established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. These records contain a diagnosis of bilateral sensorineural hearing loss and establish that the Veteran has a bilateral hearing disability within VA standards.  See 38 C.F.R. § 3.385. Service treatment records (STRs) revealed normal hearing at entrance and separation from service.  The March 1974 separation audiometry report reads, in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
20
20
LEFT
5
5
10
15
15

As an initial matter, the Board notes that the Veteran's STRs show normal bilateral hearing both at entrance and at separation from service and no complaints related to bilateral hearing loss. However, the Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 Caselaw Analyzed (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley at 159; see also Godfrey v. Derwinski, 2 Vet. App. 352 Caselaw Positive (1992).
As such, the remaining inquiry is whether the evidence demonstrates the incurrence of bilateral hearing loss in service or as a result of service. Upon review of the evidence, the Board concludes that the evidence of record is against a finding that the Veteran's bilateral hearing loss is related to his service.

In April 2012, the Veteran was afforded a VA hearing loss and tinnitus examination. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiometry results, in decibels, reads: 




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
55
60
5
LEFT
45
45
60
65
70

Speech discrimination scores were 94 percent for the right ear and 94 percent for the left ear. After a review of the Veteran's claims file and an in-person examination, the audiologist rendered the clinical assessment that it is less likely as not that the Veteran's bilateral hearing loss was incurred in or caused by his 
service. The rationale being that the Veteran had normal hearing at entrance and at separation from service with no significant threshold shift. The audiologist cited to "Noise and Military Service-Implications for Hearing Loss and Tinnitus," Institute of Medicine, National Academy of Science (2006), that there is no reasonable basis for delayed-onset hearing loss, i.e., normal hearing at discharge and causally attributable hearing loss related to service noise exposure decades later. The audiologist emphasized that the Veteran's MOS was Auto Digital Switching Specialist, which, according to the audiologist, had a moderate probability of excessive noise exposure. Therefore, the audiologist concluded that it is less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in service.

In a May 2014 VA Form 9 statement, the Veteran claimed that his work with and exposure to electronic equipment utilizing headphones etc., during active duty damaged his hearing. During the November 2016 travel board hearing, the Veteran did not offer any testimony with regard to his service connection claim for bilateral hearing loss. 

Upon review of the evidence of record, the Board finds that the preponderance of the evidence if against a finding of service connection for bilateral hearing loss. In so finding, the Board considers the April 2012 VA medical opinion concluding that the Veteran's bilateral hearing loss was not caused by or related to the Veteran's service. Notably, the audiologist expounded on the fact that STRs did not indicate significant threshold shifts in the Veteran's hearing acuity during active duty or at separation. Most critically, the audiologist explained that audiological research has found no reasonable basis to support the occurrence of delayed-onset hearing loss, i.e., normal hearing at discharge and causally attributable hearing loss due to service noise exposure decades later.

It is well established that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). As such, the Board affords significant probative value to the April 2012 VA medical opinion in that the audiologist reviewed the Veteran's claims file, conducted an in-person examination, and provided an adequate explanation for her medical opinion. The medical opinion speaks to the issue at hand; whether the Veteran's bilateral hearing loss is attributable to his service. 

The Board recognizes the Veteran's assertion that his bilateral hearing loss is related to service-related acoustic trauma, specifically, his claimed exposure to electronic equipment utilizing headphones. The Veteran is considered competent to report the observable manifestations of his claimed disability. In this regard, while the Veteran can competently report the onset and continuity of hearing loss symptoms, an actual diagnosis of bilateral sensorineural hearing loss requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes, and can have many causes. In any event, to the extent the Veteran may be competent to opine as to medical etiology, the Board finds that the Veteran's lay assertions in the present case are outweighed by the medical evidence of record including the April 2012 VA examination report. The audiologist has the training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale for her clinical assessment. 

Lastly, the Board considers the clinical evidence of record, which indicated that the Veteran was diagnosed with bilateral sensorineural hearing loss in April 2012. The clinical evidence indicates that the Veteran did not exhibit symptoms of bilateral hearing loss until 37 years after separation. In sum, the Veteran was not diagnosed with bilateral hearing loss until more than 30 years after his separation from service.  The evidence indicates that the Veteran's bilateral hearing loss did not manifest to a compensable degree within the one year presumptive period after separation from service. Therefore, the Board finds that the evidence of record preponderates against a finding of service connection for bilateral hearing loss on a presumptive basis.  

Thus, after reviewing the evidence of record the Board finds there is no causal connection between the Veteran's current bilateral hearing loss and his service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The claim is therefore denied. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert. 

Prostate Cancer due to Agent Orange Exposure

The Veteran contends that his prostate cancer is a result of his service. Specifically, the Veteran contends that he developed prostate cancer as a result of Agent Orange exposure while serving at U-Tapao Royal Thai Air Force Base in Thailand. 

The existence of a present disability is established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. These records contain a diagnosis of adenocarcinoma of the prostate. Service treatment records (STRs) did not reveal any abnormalities that were attributed to prostate cancer. However, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service-connected if the requirements of § 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 § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309 (e). Upon review of the evidence, the Board concludes that the evidence of record is in relative equipoise as to whether the Veteran was exposed to Agent Orange while serving in Thailand. 

A May 2010 private treatment record indicated that the Veteran was diagnosed with adenocarcinoma of the prostate. During a June 2011 VA Agent Orange examination, the Veteran's prostate cancer diagnosis was confirmed and the examiner noted that toxic agents of dioxin (Agent Orange) exposure was present and that Agent Orange exposure was presumed. 

Previous attempts by VA in March 2012, August 2013, December 2013, and April 2014 to corroborate the Veteran's reported exposure to Agent Orange through the U.S. Joint Services Records Research Center (JSSRC), including an undated VA memo entitled "Herbicide use in Thailand during the Vietnam Era," were unsuccessful,  the Veteran's representative produced the VA C&P bulletin that acknowledges that Agent Orange was used to defoliate airbase perimeters in Thailand between February 28, 1961 and May 7, 1975, and directed VA adjudicators to consider claims on a case-by-case basis to include the Veteran's proximity to the airbase perimeter, MOS, and if supported by otherwise credible evidence, concede the Veteran's herbicide exposure on a direct/facts-found basis. See M21-1, Part IV, ii.1.H.5.b. 

In several statements and during the November 2016 hearing, the Veteran claimed that while stationed at U-Tapao, on the night of January 10, 1972, he was called to report to Central Security Headquarters, issued a M-16 assault rifle, and dispatched to patrol the base perimeter during an enemy sapper attack. The Veteran stated that he was a part of Charlie-sector Quick Reaction Team (QRT) (C-3) and walked and crawled in the defoliated area along the base perimeter looking for cover under enemy fire.

In November 2016, the Veteran submitted a January 10, 1972 temporary issue receipt for an M-16 assault rifle, serial #0299141 and 90 rounds of 5.56 ammunition, 5 magazines. The Veteran submitted a February 1972 declassified after action report regarding the January 10, 1972 attack at U-Tapao Royal Thai Airfield Base. The report indicated that U-Tapao came under small arms fire by 2 men outside the perimeter of the airfield base. Security forces were briefed and dispatched, including Alpha sector six-man QRT (A-3); Bravo sector three-man SAT (B-4); Charlie sector three-man SAT (C-4); Charlie sector six-man QRT; and Tiger 1, that began a "careful sweep toward the munitions maintenance storage (MMS) area". 

The Veteran also submitted a February 1973 Project CHECO Southeast Asia Report, "Base Defense in Thailand", Department of the Air Force, Headquarters Pacific Air Force, which corroborated the Veteran's account of the January 10, 1972 sapper attack at U-Tapao. The CHECO report indicated that on January 10, 1972 a 3-man communist sapper unit penetrated the base perimeter at U-Tapao without being detected; SATs and QRTs were dispatched to the scene and the Thai and U.S. defense personnel successfully thwarted the attack.  

In this appeal, the Veteran's lay assertions, the January 10, 1972 M-16 temporary issue receipt, the February 1972 declassified after action report, the February 1973 Project CHECO report, and the clinical evidence of the Veteran's prostate cancer diagnosis are persuasive in the Board's finding that the Veteran's prostate cancer is due to Agent Orange exposure.  The record supports the conclusion that the Veteran has a current disability of prostate cancer. As the Veteran is presumed to have been exposed to herbicides while patrolling the U-Tapao airfield base in Thailand and has been diagnosed with a disability presumptively linked to herbicide exposure, the Board finds the service connected for prostate cancer is warranted. 
 

II. Increased Rating

Tinnitus 

The Veteran contends that he is entitled to a higher disability rating for service-connected tinnitus. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 

The Veteran's tinnitus is rated 10 percent under DC 6260. 38 C.F.R. § 4.87 (2017). Pursuant to DC 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155   (2012); 38 C.F.R. § 4.87 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).

The Veteran has not submitted any statements or offered any testimony regarding the extent of his service-connected tinnitus in support of his increased rating claim. The clinical evidence of record did not indicate complaint of, or treatment for the Veteran's service-connected tinnitus. An April 2012 VA examination confirmed the Veteran's recurrent tinnitus diagnosis. Therefore, based on the foregoing evidence and that 10 percent is the maximum schedular rating available for tinnitus, the Board finds that an increased rating for tinnitus is not warranted and the claim is denied. 


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for prostate cancer due to Agent Orange exposure is granted. 

Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling is denied. 




____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs