Citation Nr: 1802190 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure. 4. Entitlement to service connection for brain tumor, to include as due to herbicide exposure. ORDER Service connection for bilateral hearing loss and tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss is etiologically related to an in-service injury, event, or disease. 2. Tinnitus is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 2. The criteria for service connection for tinnitus have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Bilateral Hearing Loss and Tinnitus The Veteran has asserted entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, he asserts that being exposed to acoustic trauma in service caused his currently diagnosed tinnitus and hearing loss. After a careful review of the evidence, the Board finds that service connection is warranted. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see also Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As an organic disease of the nervous system, which includes sensorineural hearing loss, is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C. § 1154 (b). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303 (a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has been diagnosed with bilateral hearing loss for VA purposes. He also has a diagnosis of tinnitus. As such, the first element of service connection has been met. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disabilities and the in-service disease or injury. The Veteran's October 1967 service entrance examination shows that his hearing was within normal limits. His October 1970 service exit examination also showed that his hearing was within normal limits, but does show a threshold shift in the hearing acuity. His service treatment records (STRs) do not show any complaints of hearing loss or tinnitus. In an April 2012 audiological consultation, the Veteran related that he has had "real bad ringing" in his ears ever since he came home from Vietnam. The Veteran reported military noise exposure (infantry in Vietnam) and occupational noise exposure (working in a hosiery mill). The Veteran underwent a VA audiological examination in October 2012. The examiner opined that the Veteran's entrance and separation examinations showed normal hearing bilaterally. The examiner noted that in-service hearing examinations showed normal hearing at all frequencies, and there was no other evidence available that showed that hearing loss developed within one year of separation. The Veteran's private physician sent in a letter in which she stated that the Veteran has been her patient for many years and that, over the years, they have discussed his military noise exposure and how that affected his hearing, hearing loss, and tinnitus. The physician stated that the Veteran has had two hearing tests. The physician opined that both the hearing loss and tinnitus most likely started in the military and were due to the extensive and repetitive noise in the military. In several lay statements, the Veteran related that he was exposed to the noise resulting from being in an infantry unit and worked in supplies, and worked as a truck driver taking weapons (machine guns and hand guns) to headquarters for repairs. He stated that the diesel engines of the trucks he drove were very loud, land mines and grenades would explode all around him, and he never had any ear protection. The Veteran asserted that his bilateral hearing loss and tinnitus developed due to this noise exposure. See December 2012 Veteran statement. The Board finds that the Veteran is competent to describe being exposed to loud noise, such as those caused by explosions. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are found to be credible because they have been consistent and are confirmed by the circumstances of his service. The Veteran's personnel file shows that he was awarded a Vietnam Campaign Medal, Army Commendation Medal, Vietnam Service Medal, and National Defense Medal. The Board finds no reason to doubt the Veteran's credibility. For these reasons, the in-service injury of acoustic trauma to both ears is established. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Federal Circuit held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C. § 5103A (d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, the Veteran is competent to describe his in-service recollections of hearing loss and tinnitus as well as his current manifestations of hearing loss and tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board also finds the lay statements in evidence credible. The Veteran's statements are consistent with each other, and with other evidence of record, such as the evidence of the circumstances of the Veteran's service. Despite not being buttressed by contemporaneous medical evidence, the statements attest to the continuity of the Veteran's bilateral hearing loss and tinnitus symptomatology, and the Board finds them both assertive and persuasive. As for tinnitus, the Board notes that the Veteran is competent to report that he experiences ringing in his ears, which is the clinical feature of tinnitus, starting in service, and that it has continued after separation from service. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to onset of tinnitus in service and the persistence of ringing in his ears since that time are consistent and credible, and the Board finds that the Veteran's lay statements are sufficient to establish service connection for tinnitus under these circumstances. As for hearing loss, the Board finds that the Veteran's statements as to the onset of hearing loss and continuity of symptomatology of hearing loss since service are credible, and the Board finds that those lay statements are sufficient to establish continuity of symptomatology of hearing loss in this case. Both the Veteran and the Board acknowledge that chronic hearing loss was not documented in service or for many years thereafter. However, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a) (2012). In addition, the Veteran's long-term physician provided a positive nexus opinion, stating that the Veteran's bilateral hearing loss and tinnitus were related to the Veteran's active service. While it is unclear from the opinion whether the doctor reviewed the Veteran's claims file, her opinion was based on having treated the Veteran for many years and knowing his medical issues well. In this regard, while the VA opinion of record is not favorable to the Veteran, the October 2012 VA examiner stated that the Veteran's current bilateral hearing loss and tinnitus were not related to his active service, as the entrance and separation examinations showed normal hearing for VA purposes. The examiner also did not explain the threshold shift in the Veteran's hearing acuity and failed to address the assertions of continuity of symptomatology of the Veteran's hearing loss and tinnitus. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nor did the examiner discuss the Veteran's lack of unprotected hazardous noise exposure post-service. While the examiner appeared to attribute the Veteran's hearing loss to factors other than service, the examiner never stated what post-service factors could have caused the Veteran's disability. Regardless of the examiner's failure to discuss the etiology of the disabilities, the Veteran essentially denied any other factors caused his hearing loss, asserting that his hearing loss and tinnitus began in active service as a result to hazardous noise exposure. In any event, the Board finds that the evidence is, at a minimum, at least in equipoise. In light of the credible lay evidence of hearing loss and tinnitus in service, continuity of symptoms since service, evidence linking both disabilities to noise exposure, and resolving any doubt in the Veteran's favor, service connection for tinnitus and bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). REMAND The Veteran asserts that his basal cell cancer and brain tumors are related to his active service, to include herbicide exposure. The record shows that the Veteran had skin cancer removed from his left temple. See January 2003 VA treatment notes, in Legacy Content Manager. In June 2012, the Veteran was diagnosed with nodular basal cell carcinoma of the skin on his right upper back. See June 2012 VA treatment notes, in Legacy Content Manager. In July 2012, the Veteran had a lesion removed from his right shoulder. See July 2012 VA treatment notes, in Legacy Content Manager. The record shows that the Veteran had surgery to remove five brain tumors in August 2011. See August 2011 VA treatment records, in Legacy Content Manager. The medical records in evidence do not contain an opinion as to the etiology of the Veteran's brain tumors. Here, the Board notes that a Veteran who served in Vietnam during the Vietnam era is presumed to have been exposed to herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). As the Veteran served in-country during the Vietnam era, exposure to herbicide is conceded in present case. If a Veteran was exposed to an herbicide agent, certain diseases listed at 38 C.F.R. § 3.309 (e) will be considered service connected even though there is no record of such disease in service. Basal cell cancer and brain tumors are not among the listed disabilities attributable to herbicide exposure. Therefore, to the extent that the Veteran may have been exposed to herbicides, basal cell cancer and brain tumors are not presumed to have resulted from that exposure. Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a Veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, on the basis of the Veteran's lay testimony, a VA examiner should provide an opinion on whether the Veteran's basal cell cancer and brain tumors were directly caused by his exposure to Agent Orange (herbicide), or are in any other way related to the Veteran's active service. In light of the fact that the Veteran is, as of December 2015, in receipt of a 100 percent disability rating, the RO should contact the Veteran first before proceeding with further development to check if he wishes to proceed with his appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative to ascertain whether he wishes to proceed with the appeal of these issues, as he is currently in receipt of a 100 percent disability rating, or if he wishes to withdraw the claim (in writing, please). 2. If the Veteran wishes to proceed with the service connection claims, schedule the Veteran for an examination with the appropriate examiner in order to ascertain the nature and etiology of his basal cell carcinoma and brain tumors. The examiner should review the file prior to the examination and indicate that such a review took place. All appropriate tests and studies should be conducted. A full rationale should be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. The examiner should address the following: a) Provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed basal cell carcinoma had its onset in service or is etiologically related to the Veteran's active duty service, to include herbicide exposure. b) Provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed brain tumors had their onset in service or are etiologically related to the Veteran's active duty service, to include herbicide exposure. c) Then re-adjudicate the claims. If any benefit remains denied, issue a Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: The American Legion Department of Veterans Affairs