Citation Nr: 18149038 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-40 001 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for varicose veins of the left lower extremity is denied. Entitlement to service connection for varicose veins of the right lower extremity is denied. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is denied. FINDINGS OF FACT 1. Bilateral hearing loss manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. Tinnitus manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 3. Varicose veins of the left lower extremity are not shown to be causally or etiologically related to an in-service event, injury or disease. 4. Varicose veins of the right lower extremity are not shown to be causally or etiologically related to an in-service event, injury or disease. 5. Prostate cancer manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be related to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.385 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09 (2018). 3. The criteria for service connection for varicose veins of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for varicose veins of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to May 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4–D; 2,4,5–T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed, including prostate cancer. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for bilateral hearing loss. Beginning with direct service connection, the Veteran currently has hearing loss for VA purposes, and therefore a current disability has been established and the first element is met. 38 C.F.R. § 3.385. Concerning the second element, the Veteran has alleged that his hearing loss is due to noise exposure while he was serving in the Air Force. However, the Veteran’s military occupational specialty was that of an administrative specialist, clerk typist, and keyhole puncher. While the Veteran contends that he was exposed to persistent jet engine noise, his service personnel records do not show any indication that the Veteran was working on or around jets. Therefore, an in-service event, injury, or disease has not been shown. Additionally, turning to the third element, the Veteran has reported that his hearing loss is related to service. While competent to report the persistence of lay observable symptoms, such as difficulty hearing, the Veteran is not competent to state an opinion as to whether his hearing loss is causally related to noise exposure occurring decades earlier in service, as to do so requires expertise in the field of audiology. Jandreau, 492 F.3d 1372. Further, to the extent the Veteran has indicated that he has experienced persistent hearing loss since service, such a finding is inconsistent with the record. Specifically, the Veteran’s hearing at his July 1963 enlistment exam and at his February 1967 separation exam were both normal. Moreover, the Veteran did not indicate that he had any hearing loss on his February 1967 report of medical history. Instead, the Veteran did not file an application for service connection for bilateral hearing loss until July 2015, nearly 50 years after his separation from active service. Thus, the Veteran’s current recollections are undermined by earlier evidence and therefore cannot be deemed probative to establish the existence of persistent symptoms since service. The Veteran had a VA examination in October 2015, wherein he was diagnosed with sensorineural hearing loss. However, the examiner opined that the Veteran’s hearing loss was less likely than not related to service because “there is no significant noise exposure found in records, [the] Veteran’s hearing at separation is normal bilaterally, and there is significant post military occupational noise exposure.” The record shows that the Veteran worked in a factory and in construction jobs following separation from service. Thus, the Board finds this opinion to be well reasoned and entitled to significant weight. As the Veteran’s service treatment records do not show any complaints of hearing loss during or immediately following service. Based on the competent and credible evidence of record, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and his active duty service. As the third element is not met, service connection for bilateral hearing loss on a direct basis is not warranted in this case. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is encompassed by the boarder term “organic diseases of the nervous systems,” and is therefore a recognized chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the preponderance of the evidence is against a finding of in-service hearing loss manifested to a sufficient degree so as to identify the disease or manifestation to a compensable level in the first post-service year. Service treatment records are silent for a diagnosis of bilateral hearing loss at 500 to 4000 hertz or complaints of symptoms thereof. At the Veteran’s February 1967 separation examination his hearing was not found to be impaired for VA purposes. 38 C.F.R. § 3.385. As there is no persuasive evidence of manifestation in-service or within the first post-service year, service connection for bilateral hearing loss based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. For these reasons, entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus. As explained above, the Veteran did not have any hearing loss during service, or shortly thereafter. With regard to his tinnitus, a current disability has been established as the October 2015 VA examiner diagnosed him with such. However, his service treatment records are devoid of any complaints of tinnitus, as are his treatment records following service. The Veteran did not file for service connection for tinnitus until July 2015, nearly 50 years after his separation from service. The preponderance of the evidence is against the finding of an in-service event, injury, or disease. Moreover, the October 2015 VA examiner opined that the Veteran’s tinnitus is less likely than not related to service, for the same reasons as his bilateral hearing loss, including normal hearing at separation and post service occupations that involved significant noise exposure. The Board again finds this opinion to be well reasoned and entitled to significant weight. Therefore, entitlement to service connection for tinnitus on a direct basis is denied. Tinnitus is an organic disease of the nervous system, and is therefore considered a chronic disease for VA purposes and service connection based on continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271–72 (2015). The Veteran has reported that he currently has ringing in the ears, which he is competent to report. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, the record does not persuasively support a finding of continuity of symptomatology as the Veteran reported no hearing loss at separation from service, and his treatment records since separation make no mention of tinnitus. In fact, the only medical record regarding the Veteran’s tinnitus is that of the October 2015 VA examination. As the record is silent for any complaints of tinnitus both during and following separation from service, service connection for tinnitus based on the presumption in favor of continuity of symptomatology is not warranted. Thus, entitlement to service connection for tinnitus is denied. 3. Entitlement to service connection for varicose veins of the left and right lower extremities. The Veteran’s treatment records show a diagnosis of mild bilateral varicose veins in November 2016; thus, the Veteran has a current disability. Concerning the second element, the Veteran’s service treatment records do not show any complaints or treatment for varicose veins during service. Moreover, the November 2016 diagnosis is the only mention of varicose veins in the Veteran’s post service treatment records, and said records contain a note that the Veteran worked in construction for a “long time” and noticed swelling on and off during that time, no medication was prescribed. The Veteran contends that his flight to Thailand during service caused leg pain, which he treated himself with bengay. He further contends that his condition worsened to develop varicose veins. However, as noted above, the Veteran’s service treatment records do not show any treatment for leg pain or varicose veins. Occasional nocturnal leg cramps were noted on his February 1967 separation exam, but no medical attention was ever sought. The only evidence of record relating the Veteran's claimed disabilities to service is the Veteran's own general conclusory statement, which does not meet the low threshold of an indication that the claimed disabilities are due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). The Veteran is not competent to link the development of varicose veins to symptoms he believes he experienced in service from sitting in a prolonged position. To make such a link would require medical expertise of the internal mechanics of the body and its response to external forces. There is no medical evidence linking the claimed disabilities to service. The Veteran has not met his burden of proof, and thus the evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). As the preponderance of the evidence is against a finding of an in-service event, injury, or disease with regard to the Veteran’s varicose veins, service connection for varicose veins of the bilateral lower extremities is denied. 4. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure. Treatment records show a diagnosis of prostate cancer, as such, the Veteran has a current disability. Turning to the second element, the preponderance of the evidence is against a finding of an in-service event, injury, or disease. The Veteran has not argued, and the service treatment records do not reflect treatment for or a diagnosis of prostate cancer while in service. No complaints of symptoms associated with prostate cancer are of record, and the Veteran’s February 1967 separation examination is silent for any notations of symptoms or a diagnosis of prostate cancer. Indeed, both the Veteran and the medical evidence indicate that prostate cancer did not manifest until well after his separation from service in December 2003. Instead, the Veteran contends that his prostate cancer is due to in-service exposure to herbicides while stationed at Takhli Royal Thai Air Force Base from 1966 to 1967. The Veteran further contends that herbicide agents were sprayed in the munitions storage area to manage grass and jungle growth and that jet planes returned to base from Vietnam after being exposed to herbicide agents. Nevertheless, as explained above, the Veteran served as an administrative specialist, clerk typist, and keyhole puncher. None of these jobs would have put the Veteran near the munitions storage area or returning jets on a regular basis. The Veteran does not contend that he ever had boots on the ground in the Republic of Vietnam, nor does his service personnel record show he was ever stationed in Vietnam. Of record is a memorandum on herbicide use in Thailand during the Vietnam era, which states in pertinent part that: While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a Veteran’s MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand… If the Veteran’s claim is based on general herbicide use within the base, such as small-scale brush or weed clearing activity along the flight line or around living quarters, there are no records of such activity involving tactical herbicides, only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer. As the Veteran’s administrative specialist positions did not have him in regular contact with the base perimeter, and small-scale weed or brush clearing was completed by approved commercial herbicides, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents. Since there is no evidence of prostate cancer in service or persuasive credible evidence of actual exposure to herbicides, entitlement to service connection for prostate cancer on a direct basis and on a presumptive basis of herbicide exposure is denied. To the extent the Veteran has most recently speculated that his prostate cancer is due to exposure to a viral infection in Thailand (see VA Form 9), again, the Veteran's own general conclusory statement does not meet the low threshold of an indication that the claimed disability is due to service. See Waters, 601 F.3d at 1278-79. The duty to assist is not triggered. Medical expertise is required to draw any link between the development of prostate cancer and exposure to a viral infection due to the complexity of the nexus question presented. No such medical evidence is of record. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with prostate cancer, which is encompassed by the term “malignant tumors,” and is therefore considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). As such, both theories are potentially applicable in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. However, the preponderance of the evidence is against a finding that the Veteran’s prostate cancer either manifested to a sufficient degree in-service so as to identify the disease or manifested to a compensable level in the first post-service year. As noted above, service treatment records are silent for treatment of or diagnosis of prostate cancer. The Veteran’s February 1967 separation examination is silent for any notations concerning symptoms of prostate cancer. Post-service treatment records show that the Veteran’s prostate cancer did not manifest until well after his separation from active duty service. As there is no evidence of in-service manifestation or manifestation within the first post-service year, service connection for prostate cancer based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service injury, event, or disease, that the Veteran’s prostate cancer is causally related to his service, manifested within an applicable presumptive period, or that it is related to herbicide exposure. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel