Citation Nr: 18152709 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-46 111 DATE: November 27, 2018 ORDER 1. Service connection for tinnitus is denied. 2. Service connection for prostate cancer is granted. 3. Service connection for chronic lymphocytic leukemia is granted. 4. Service connection for Non-Hodgkin’s lymphoma is granted. REMANDED 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is not shown to have been manifested in service; postservice continuity of tinnitus is not shown; and his current tinnitus is not shown to be etiologically related to his service. 2. It is reasonably shown that the Veteran was exposed to herbicide agents serving on the Korean DMZ. 3. The Veteran has a diagnosis of prostate cancer. 4. The Veteran has a diagnosis of chronic lymphocytic leukemia. 5. The Veteran has a diagnosis of Non-Hodgkin’s lymphoma. CONCLUSIONS OF LAW 1. Service connection for tinnitus is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for prostate cancer is warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 3. Service connection for chronic lymphocytic leukemia is warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 4. Service connection for Non-Hodgkin’s lymphoma is warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served active duty from June 1966 to April 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 Department of Veterans Affairs (VA) rating decision. The Veteran had requested a videoconference hearing before the Board; on September 18, 2018 he withdrew the hearing request. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110, 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include SNHL and tinnitus as organic diseases of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicide agents in service, including while serving in Thailand, or on the DMZ in Korea. The Department of Defense (DoD) has determined that herbicide agents (including Agent Orange) were used along the Korean DMZ from April 1, 1968, to August 31, 1971. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that period are also presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iv). If there is no official documentation of service at a location that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. A. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure id thus a matter of fact to be determined by the Board. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease (to include prostate cancer, chronic lymphocytic leukemia, and Non-Hodgkin’s lymphoma), the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). 1. Service connection for tinnitus. The Veteran asserts his tinnitus is due to exposure to noise in service. HIs STRs are silent for complaints, treatment, or diagnosis of tinnitus. Primary care treatment records from 2009 to 2014 (October 2009, March 2012, September 2012, and February 2014) note that he denied tinnitus. On October 2013 audiology consult t the Veteran reported that he had tinnitus. He reported that it was longstanding and occurred two to three times a week. On April 2014 VA audiological examination, the Veteran attributed his tinnitus to exposure to noise during basic training. The examiner opined that it was less likely than not that the tinnitus was caused by or a result of military noise exposure. He explained there was no documentation of acoustic injury or complaints of tinnitus during active military service or at separation, and no evidence of chronicity or continuity of tinnitus for over 40 years following the Veteran’s separation from service. It is not in dispute that the Veteran has tinnitus; the diagnosis is established based on self-reports by the person experiencing it (and the Board finds no reason to questions the Veteran’s reports that he now has ringing in his ears). What the Veteran must show to substantiate this claim is that the tinnitus is etiologically related to his service, to include as due to exposure to noise therein. Tinnitus was not reported in service, within a year following separation from the military, or for over four decades thereafter. Accordingly, service connection for tinnitus on the basis that it began in service and persisted (or on a chronic disease presumption bases under 38 U.S.C. § 1112) is not warranted. While service connection may be established by showing continuity under 38 C.F.R. § 3.303(b), the Veteran has not reported having tinnitus continuously since service. The April 2014 VA examination (reporting that the Veteran’s recurrent tinnitus started in basic training) is contradicted by more contemporaneous clinical notations (the Veteran’s denials of tinnitus in October 2009, March 2012, September 2012, and February 2014). The clinical notations, which by being more contemporaneous and noted in a clinical context, merit greater probative value than the self-serving report on April 2014 VA examination. As VA treatment records from 2009 to 2014 note he denied having tinnitus, continuity simply is not shown. Accordingly, service connection for tinnitus based on continuity under 38 C.F.R. § 3.303(b) is not warranted. What remains for consideration is whether the Veteran’s tinnitus is otherwise shown to be etiologically related to his service. The only medical opinion in this matter is against the Veteran’s claim. The April 2014 VA examiner opined that the Veteran’s tinnitus is less likely than not related to his military service (citing to the absence of tinnitus complaints during service to include on separation, and that continuity of symptoms is not shown). The Board finds that opinion warrants substantial probative weight as the provider expressed familiarity with the Veteran’s medical history (citing to the absence of documentation of tinnitus in service or for decades thereafter, and noting the Veteran’s long-term exposure to noise in civilian occupations) and included adequate rationale for the conclusion reached. The Veteran has not submitted any medical opinion to the contrary. The Veteran’s own opinion relating his tinnitus to noise in service (and specifically basic training) is not probative evidence in the matter. When there is no evidence or onset in service or continuity the etiology of tinnitus is a medical question. The Veteran is a layperson, and does not profess to have medical expertise. The preponderance of evidence is against the claim; Accordingly, the appeal in the matter must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55. 3., 4., 5. Service connection for prostate cancer, chronic lymphocytic leukemia, and Non-Hodgkin’s lymphoma is granted. The Veteran alleges that his prostate cancer, chronic lymphocytic leukemia, and Non-Hodgkin’s lymphoma are due to exposure to herbicide agents serving on the Korean DMZ. The Veteran’s service personnel records note that he was assigned to the 728th Military Police Battalion in Korea from November 1966 to April 1968. His STRs are silent for complaints, treatments, or diagnosis of prostate cancer, chronic lymphocytic leukemia, or Non-Hodgkin’s lymphoma. VA treatment records note the Veteran had prostate cancer diagnosed in 2008 and chronic lymphocytic leukemia and non-hodgkin’s lymphoma diagnosed in October 2009. As the claims of service connection for prostate cancer, chronic lymphocytic leukemia, or non-hodgkin’s lymphoma are premised on the theory that they are due to exposure to Agent Orange, the threshold question that must be resolved is whether the Veteran was indeed exposed to Agent Orange in service. He did not serve in Vietnam; as noted above presumption of exposure to Agent Orange presumption has been extended to Veterans who served on/along the Korean DMZ from April 1, 1968, to August 31, 1971. In an April 2013 statement in support of claim, the Veteran reported he was sent to the DMZ several times to remove military personnel as part of his role as a military policeman. In August 2013, he submitted buddy statements from J.W., T.D., and J.N. J.W. noted he and the Veteran volunteered to escort convoys to the DMZ and travelled to areas near the DMZ to transport prisoners. T.D. indicated that he and the Veteran escorted trucks to the DMZ. J.N. related that the Veteran was in his platoon, and that they made several trips to the DMZ together for prisoner transport. An April 2014 response from the Defense Personnel Records Information Retrieval System (DPRIS) notes that 1969-unit histories by the 728th Military Police Battalion were reviewed. The histories document that Company A, 728th Military Police Battalion was located at Camp Grant, Ascom, Korea, approximately 26 miles from the DMZ. The histories also document that the mission of Company A, 728th Military Police Battalion’s was the enforcement of military laws, orders, and regulations, including the control of traffic, circulation of individuals, protection of property, and operation of checkpoints. The histories do not document use, storage, spraying or transportation of herbicides, and do not document any specific duties performed by members of Company A, 728th Military Police Battalion along the DMZ. In May 2014, the Veteran submitted an additional buddy statement from R.Q. The statement indicates that Company A’s duties included patrolling the main supply route, assisting in escort duty for equipment and supply convoys, prisoner transportation and relocation, and accident investigation. R.Q. noted that Company A (in which he and the Veteran both served) escorted supply trucks traveling to the DMZ as far as the DMZ, and also stated that Company A was tasked with the transport of prisoners from the DMZ and that the Veteran was dispatched more than once to the DMZ for escort support of convoys. In a June 2014 statement, the Veteran reported he was sent to the DMZ several times for prisoner pick-up when military police intervention was needed for problems with soldier behavior. He related he was also escort for convoys going to the DMZ. Official attempts at verification of the Veteran’s allegations of exposure to Agent Orange in the Korean DMZ resulted in negative responses based on findings that the unit records do not show that the Veteran’s unit (or its members) conducted activities near the DMZ. While unit histories do not place the Veteran’s unit (or its members) in the DMZ, they do not include descriptions of the duties of individual unit members; therefore, alone they ar not dispositive of whether the Veteran’s duties placed him in/at the DMZ. All evidence pertaining to the matter must be considered, and the Board is faced with assessing the credibility of the Veteran’s (and his buddies) allegations that his unit details (while stationed at Camp Grant) placed him at or near the DMZ. The Board finds significant and probative the Veteran’s submissions of corroborating statements by former fellow servicemen indicating that his details placed him on and near the DMZ. Considering the proximity of Camp Grant to the DMZ and the detailed accounts of his assigned duties (corroborated by supporting buddy statements the veracity of which Board has no reason to question), the Board finds that it is reasonably shown that the Veteran’s duties in service placed him on or near the Korean DMZ when Agent Orange was known to have been used there, and that the evidence regarding whether he was exposed to Agent Orange/herbicide agents in service is at least in equipoise. Consequently, he is entitled to consideration of these claims under the presumptive provisions of 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The record shows, and it is not in dispute, that he has diagnoses of prostate cancer, chronic lymphocytic leukemia, and Non-Hodgkin’s lymphoma. The requirements for establishing presumptive service connection based on exposure to herbicide agents are met. Service connection for prostate cancer, chronic lymphocytic leukemia, and Non-Hodgkin’s lymphoma is warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran’s submission of a VA Form 9 in December 2015 constitutes a timely substantive appeal following the November issuance of the Statement of the Case (SOC) addressing service connection for hypertension. While he listed specific issues on that VA Form 9 (not including hypertension), he checked the box indicating he was appealing all issues listed on the SOC and any supplemental SOC (which included a separate SOC addressing hypertension) sent to him (not the box indicating he was restricting his appeal to the specifically listed issues). Accordingly there is a perfected appeal in the matter of service connection for hypertension. However, the Veteran and his attorney were advised by the AOJ that there was no timely substantive in the matter, and the argument subsequently submitted by the attorney (as would be expected) did not address that issue. In October 2016 the AOJ issued a separate VA Form 8 certification of appeal pertaining to the issue of service connection for hypertension. As the attorney has been deprived opportunity to provide argument on the merits in that matter (the substantive appeal having been found to be untimely), there is a due process violation that must be corrected. 2. Service connection for bilateral hearing loss. The Veteran has submitted the report of a private audiological evaluation with substantially disparate findings (from official VA audiometry), particularly regarding the presence of a right ear hearing loss disability (per Maryland CNC list audiometry), and regarding the etiology of left ear hearing loss). Another examination that reconciles the evidence currently in the record is necessary. The matter is REMANDED for the following: 1. Advise the Veteran’s attorney that the Veteran has a perfected appeal in the matter of service connection for hypertension, and invite the attorney to present written argument in the matter (affording an appropriate period for response). 2. Arrange for an audiological evaluation of the Veteran (with audiometric studies) to confirm the presence of a right ear hearing loss disability (as defined in 38 C.F.R. § 3.385), and for an opinion regarding the etiology of the Veteran’s left (and any right) ear hearing loss disability. The opinion should include respond to the following: (a) Does the Veteran have a right ear hearing loss disability (as defined in 38 C.F.R. § 3.385)? If not, reconcile that finding with the July 2014 private audiometry speech discrimination findings (84% by Maryland CNC list). (b) Identify the likely etiology for the Veteran’s hearing loss disability. Is it at least as likely as not (a 50% or better probability) that it is related to his acknowledged exposure to noise in service? Reconcile any finding that the hearing loss is unrelated to service with the private audiologist’s opinion that the left ear hearing loss shown is in a configuration reflecting hearing loss due to noise trauma. Include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk