Citation Nr: 18153995 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-55 691 DATE: November 28, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for residuals of testicular cancer, to include as due to smoke stack hazard exposure, is remanded. Entitlement to service connection for residuals of breast cancer, to include as due to smoke stack hazard exposure and as secondary to testicular cancer, is remanded. FINDINGS OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the period on appeal, a right ear hearing loss disability, or a left ear hearing loss disability that etiologically related to service. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, including from November 1970 to December 1972. The Board of Veterans’ Appeals (Board) notes that the Veteran has not contended that he has been diagnosed with one of the conditions set forth in 38 C.F.R. § 3.309(e), as due to herbicide agent exposure, and his medical records do not reflect any such diagnosis. Accordingly, the Board finds that there is no indication that this case will be affected by the outcome of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). 1. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to establish service connection 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. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). For these purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 this issue, the Board finds that the most pertinent evidence consists of the Veteran’s statements, his service treatment records (STRs), and the report from an October 2016 VA examination. The Veteran claims entitlement to service connection for bilateral hearing loss, which he has reported to have sustained during his active duty service and as a result of his exposure to the loud noise of jet engines. See, e.g., VA Form 9, Appeal to Board of Veterans’ Appeals (Board) received in November 2016. However, the Board notes at the outset that, in order to be competent, the establishment of the existence of hearing loss for purposes of a claim for service connection and the establishment of a nexus between any such hearing loss and one’s active military service requires certain qualifications, including a certain level of medical/ audiological education, training, and/or experience, and the ability to perform audiological testing or at least to interpret the results thereof. The Veteran has not shown that he possesses any such qualifications. Therefore, for purposes of this claim, he is not competent to opine on whether he has a hearing loss disability, nor on whether there is a nexus between any such hearing loss and his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A review of the Veteran’s STRs reveals that he did not have audiological testing at entry into service. At separation, in November 1972, bilaterally his pure tone thresholds were at 15 decibels at 500 Hertz, and at 10 decibels at the remaining relevant Hertz levels. See 38 C.F.R. § 3.385. Furthermore, his STRs do not show that he made any complaints of hearing loss or tinnitus during his active service. The Veteran was afforded a VA examination in October 2016, and although the examiner indicated that the Veteran did have some hearing loss at that time, the Veteran’s puretone threshold test results indicated that he did not have a hearing loss disability as to his right ear, for purposes of service connection. He did have a hearing loss disability as to his left ear, though. However, the examiner opined that the Veteran’s hearing loss was less likely than not related to his active military exposure or any event (e.g., noise exposure) therein, based on the fact that the Veteran’s hearing was within normal limits during his separation examination. The Board has considered whether a more detailed opinion is needed in this case in light of Hensley v. Brown, 5 Vet. App. 155 (1993), concerning in-service evidence of a hearing loss which otherwise does not meet the 38 C.F.R. § 3.385 disability threshold. This case, however, is distinguishable from Hensley, which reflects that “the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Id. at 157. Here, the Veteran’s in-service thresholds were all at 15 decibels or below. He has presented no competent lay, medical, or audiological evidence to support a link between a current left ear hearing loss disability and service, and, while he has provided specific contentions as to noise exposure, he has not detailed a continuity of symptomatology of left ear hearing loss since service. In summary, there is nothing in the record to raise a reasonable possibility that a further VA etiology opinion will result in findings favorable to the Veteran’s appeal. The Board thus finds no basis for a remand for a more detailed VA examination opinion and will proceed to its determination based upon the evidence of record. 38 C.F.R. § 3.159(c)(4). Overall, the Board finds that the preponderance of the evidence of record weighs against finding that the Veteran has had a hearing loss disability as to his right ear during the period on appeal, and it also weighs against finding that there is a nexus between the Veteran’s left ear hearing loss disability and his active service. Accordingly, the Veteran’s appeal as to his claim of entitlement to service connection for bilateral hearing loss is denied. REASONS FOR REMAND Entitlement to service connection for residuals of testicular cancer and residuals of breast cancer are remanded. The Veteran claims that he was exposed to smoke stacks while serving on active duty; that he has testicular cancer that was caused by said exposure; that he has breast cancer that was caused by his low testosterone, which, in turn, resulted from his testicular cancer; and that his doctor told him that studies show that testicular cancer can cause breast cancer. See, e.g., VA Form 21-4138, Statement in Support of Claim received in March 2016. The Veteran has also submitted medical literature that he purports to show that exposure to smoke stacks causes cancer, and medical records showing his diagnosis of testicular and breast cancer. See, e.g., medical literature received on November 16, 2016. The Veteran has not yet been afforded a VA examination for his claimed residuals of testicular cancer and breast cancer, but, considering the above, such is necessary. The matter is REMANDED for the following action: Schedule the Veteran for a VA medical examination by an appropriate clinician to determine the nature and etiology of any testicular and breast cancer residuals. The examiner must opine whether either is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, including exposure to smoke stacks. The examiner should also opine on whether the Veteran’s breast cancer residuals are at least as likely as not (1) proximately due to the Veteran’s testicular cancer and/or its residuals, or (2) aggravated beyond its natural progression by the Veteran’s testicular cancer and/or its residuals. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel