Citation Nr: 18142757 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 18-31 433 DATE: October 16, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a right knee disability, to include a right knee replacement, is remanded. Entitlement to service connection for a left knee disability, to include left knee replacement, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic renal disease is remanded. Entitlement to service connection for chronic lymphocytic leukemia is remanded. Entitlement to service connection for multiple myeloma is remanded. FINDING OF FACT A bilateral hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is no link between the hearing loss disability and active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army as a General Medical Officer from July 1967 to February 1970. 1. Entitlement to service connection for a bilateral hearing loss disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Certain diseases, to include organic diseases of the nervous system, 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. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). As there is no evidence or claim that the Veteran was diagnosed with a hearing loss disability within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his current bilateral hearing loss disability is the result of in-service noise exposure, due to working in a field artillery unit. The Veteran’s service treatment records include a September 1966 Report of Medical Examination prior to enlistment that showed hearing acuity within normal limits. In a contemporaneous Report of Medical History, the Veteran denied a history of hearing loss or ear trouble. In December 1969, prior to separation from service, the Veteran had hearing acuity that was within normal limits for VA compensation purposes. In a contemporaneous Report of Medical History, the Veteran denied a history of hearing loss or ear trouble. The Veteran’s December 2014 claim indicated that his hearing loss disability began in 2001. The Veteran was afforded a VA audiological examination in July 2015. The examiner noted review of the claims file. The Veteran reported gradually progressive bilateral loss of hearing. There was hazardous noise exposure as the result of serving with an artillery unit. The Veteran reported acoustic trauma from an artillery simulator set off in close proximity resulting in temporary tinnitus for approximately 2 weeks, as well as visual disturbance. The Veteran reported minimal use of firearms. Post-service noise exposure was noted due to seasonal lawn mower use and occasional use of a chain saw, all with the use of hearing protection. Following examination, the examiner diagnosed bilateral sensorineural hearing loss and test results showed a hearing loss disability for VA purposes with respect to each ear. The examiner concluded that it was not at least as likely as not that the bilateral hearing loss disability was caused by or the result of service. The rationale noted that the examining audiologist had 27 years of experience. In addition, the examiner again noted the Veteran’s contentions of in-service noise exposure that included acoustic trauma from an artillery simulator. The Veteran entered and exited service with clinically normal hearing without evidence of a statistically significant threshold shift. Research studies had shown that hazardous noise exposure had an immediate effect on hearing, and it was usually temporary at first. There was no evidence of delayed onset hearing loss, nor progressive or cumulative hearing loss. Based on such studies, the Veteran’s hearing test prior to separation accurately reflected the effects of any hazardous noise exposure the Veteran sustained during active service. There was no objective evidence of noise-induced auditory injury prior to separation from service. The Veteran’s substantive appeal (VA Form 9) claimed that he participated in live fire exercises with a field artillery unit in Alaska and suffered significant acoustic trauma at the time. Thus, the Veteran has a current bilateral sensorineural hearing loss disability. The pertinent inquiry, then, is whether the bilateral hearing loss disability was caused by or is otherwise related to any incident of service, to include noise exposure from real or simulated field artillery. The Board concludes that the hearing loss disability had its onset multiple years after service and is not otherwise related to service. In reaching that opinion, the Board has considered the findings and conclusions from the July 2015 VA examination report. The examiner concluded that given his normal hearing acuity at separation from service it was less likely as not that the Veteran’s current bilateral hearing loss disability was related to service. Medical studies showed no evidence of delayed onset hearing loss or cumulative effects from acoustic trauma. As such, the Veteran’s normal hearing acuity prior to separation accurately reflected the result of any in-service acoustic trauma on his hearing acuity. The Board finds this opinion the most probative of record, as the conclusion included a complete rationale based on all the evidence of record. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither hearing loss nor an organic disease of the nervous system was noted during service, including at the time of examination shortly before separation from active service. As noted above, the medical evidence does not show hearing loss until multiple decades after the Veteran’s separation from service. Moreover, prior to separation from service the Veteran denied any history of hearing loss, problems with his hearing, or other problems with his ears. When he filed his claim for compensation benefits in 2014, the Veteran reported onset of his hearing loss disability in 2001 (or multiple decades after separation from service). As such, the Board finds that there is no credible contention of a continuity of decreased hearing acuity or hearing loss from service. As such, the provisions of 38 C.F.R. § 3.303(b) are not for application. As to the Veteran’s general contentions that his hearing loss disability was incurred in or is otherwise related to his service, the Board finds his opinions to be of no probative weight. Although the Veteran may be competent to report decreased hearing acuity, the Veteran has not contended that he has been experiencing decreased hearing acuity from service and, to the extent that he is making such a claim, the Board finds such contentions not credible in light of his denial of a history of hearing loss prior to separation from service. The Board acknowledges that the Veteran is a physician; however, he has not provided any rationale for his contention of delayed onset hearing loss, which has been specifically refuted by the examining audiologist in this case. As such, the Board affords far greater probative weight to the opinions of the VA examiner. In summary, the Veteran does not contend that he experienced ongoing hearing problems from service and, to the extent that his contentions can be read as implicitly or explicitly raising such a claim, they are deemed not credible in light of his denial of hearing problems prior to separation from service and his report at the time of filing his claim that his hearing loss disability began in 2001. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the bilateral hearing loss claim, and that service connection for a bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include a right knee replacement is remanded. 2. Entitlement to service connection for a left knee disability, to include left knee replacement is remanded. The Veteran contends that his right and left knee replacements were due to the “natural progression” of in-service injuries to the knees incurred during his active service. The precise nature of the in-service injuries has not been explained by the Veteran and the Board notes that in a Report of Medical History prior to separation he specifically denied a history of trick or locked knee and did not describe any other ongoing knee problems. That said, the Veteran is a pediatrician and his medical education is afforded some probative weight. However, in light of the absence of a continuity of symptomatology from service (as evidenced by the Veteran’s denial of ongoing knee problems prior to separation from service) and given that he has not provided any explanation regarding the purported in-service injuries and the relationship to his post-service bilateral knee replacements, further development is required. In this case, the Veteran has not been afforded a VA examination for his right and left knee claims and the Board concludes that a remand is necessary to obtain such an examination. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for chronic renal disease is remanded. 5. Entitlement to service connection for chronic lymphocytic leukemia is remanded. 6. Entitlement to service connection for multiple myeloma is remanded. As to the Veteran’s leukemia and myeloma claims, he contends that he developed the cancers due to exposure to ionizing radiation from 105mm howitzers that were being tested during his active service, as well as from leaks and contamination from a small nuclear reactor at Fort Greely used to produce material for battlefield nuclear weapons. As the Veteran does not meet the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309, his contentions fall under the provisions of 38 C.F.R. § 3.311. 38 C.F.R. § 3.311 first requires that the Veteran have a radiogenic disease, which includes all cancers. 38 C.F.R. § 3.311(b)(2) (2018). As the Veteran has diagnoses of multiple myeloma and chronic lymphocytic leukemia, the Board recognizes that he has a radiogenic disease for the purposes of 38 C.F.R. § 3.311. Next, the regulation requires that the Veteran contend that the radiogenic disease is a result of exposure to ionizing radiation in service. 38 C.F.R. § 3.311(a)(1). As noted, the Veteran has asserted this claim. Although the Veteran acknowledged that he was never issued dosimetry and records show that he was not screened in the Personnel Reliability Program for duties associate with nuclear weapons, in such cases, VA is required to obtain a dose assessment as to the size and nature of the radiation dose or doses. Id. As the Veteran’s claimed radiation exposure was not due to atmospheric nuclear weapons test participation or the occupation of Hiroshima or Nagasaki, all records demonstrating ionizing radiation exposure in service should be forwarded to VA’s Under Secretary for Health, or designee, for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). In this case, the Veteran does not contend that he wore a radiation badge at any time during his period of service and a February 2016 response from the Army Dosimetry Center indicated that they were unable to locate any record of exposure to ionizing radiation for the Veteran. Based on the foregoing, the RO denied the Veteran’s myeloma and leukemia claims without forwarding the claim to the Under Secretary for Health for a dose estimate. As discussed above, however, 38 C.F.R. § 3.311 requires that a dose estimate be obtained from VA’s Under Secretary for Health where the Veteran has a radiogenic disease and claims that the disease is the result of in-service exposure to ionizing radiation. In his July 2015 statement, the Veteran extensively documented his claimed ionizing radiation exposure during service and provided reports of investigation of reactor operations in the area of his unit’s base. Although the Board recognizes that the Veteran’s claims do not necessarily suggest or demonstrate exposure to ionizing radiation, in light of the requirements of 38 C.F.R. § 3.311 the claims must be remanded to obtain a dose estimate from the Under Secretary for Health. As to the Veteran’s hypertension in a July 2015 statement he indicated, “The hypertension is persistent and may be caused by early Type II diabetes as well as the myeloma.” As to the chronic renal disease, a June 2015 letter from a private treating oncologist indicated that the Veteran had, “biopsy-proven kidney disease which is felt by his physicians at [] to be associated with his multiple myeloma…” In light of the suggestion that the above disabilities have been caused or aggravated by the remanded myeloma claim, adjudication of these issues is deferred pending the requested development for the myeloma claim. The matters are REMANDED for the following action: 1. To the extent possible, in accordance with 38 C.F.R. § 3.311(a)(2)(iii), the AOJ must forward the Veteran’s records concerning his radiation exposure – including any service records, his statements and testimony regarding radiation exposure, and any other information obtained while the case is Remand status – to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) Include in the submission of records to the Under Secretary a copy of the Investigative Report by the Alaska Community Action on Toxics entitled “The Nuclear Reactor at Fort Greely” posted in the claims file and request an assessment of the likelihood of any ionizing radiation exposure to a general medical officer in an operational Army field unit from this reactor. The resulting dose estimate must include consideration of the Veteran’s diagnoses of multiple myeloma and chronic lymphocytic leukemia. If the above-requested development results in a positive dose estimate, the claim must be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c). Such review should consider, and discuss as necessary, the Veteran’s reported exposure to ionizing radiation as a result of ordnance for 105mm howitzers and from leaks and contamination from the nuclear plant at Fort Greely during the Veteran’s service in the late 1960s through early 1970. 2. Schedule the Veteran for appropriate VA examination for his right and left knee claims. The electronic claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a thorough physical examination, including any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran’s right and/or left knee replacements were incurred in service or caused by his active service, to include any claimed in-service knee injuries. It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not” or “unlikely” (meaning that there is a less than 50% likelihood). The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. If the Veteran’s claims are not granted to his satisfaction, the Agency of Original Jurisdiction (AOJ) should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel