Citation Nr: 18160743 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-05 675A DATE: December 27, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for prostate cancer, to include as due to herbicide agent exposure, is remanded. Service connection for a urinary disability, to include as secondary to prostate cancer, is remanded. FINDING OF FACT Bilateral hearing loss and tinnitus are etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1955 to June 1964 in the United States Air Force. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2014, April 2015, and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). In June 2017, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In October 2017, the Board denied all of the claims on appeal. That decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Remand (Joint Motion), the Court vacated the October 2017 decision as to all claims. With regard to hearing loss and tinnitus, the parties found that both the Board and an August 2013 VA examiner failed to consider favorable evidence regarding the Veteran’s minimal post-service occupational noise exposure, and that the August 2013 examiner had not considered all of the pertinent in-service audiology records. Given parties’ findings, the Board would have ordinarily remanded the hearing loss and tinnitus claims to obtain a new VA examination. However, in light of an October 2018 medical opinion submitted by the Veteran subsequent to the Joint Motion, discussed below, the Board finds a remand is avoidable. The Veteran has current bilateral hearing loss and tinnitus, documented on VA examination in August 2013. His service separation document, DD Form 214, shows that during service, he served as an aircraft mechanic in the Air Force, a military occupational specialty associated with a high probability of noise exposure. Thus, while service treatment records do not specifically document hearing loss or tinnitus, it is clear he was exposed to acoustic trauma during military service. On the matter of etiology, the record contains the opinions of the August 2013 VA examiner, and an October 2018 private audiologist, K.F. Given the Court’s findings regarding the August 2013 VA examination report, the Board finds it is not persuasive and will thus not be discussed. In October 2018, K.F. examined the Veteran and reviewed his service treatment records. She discussed his in-service acoustic trauma, consisting of noise exposure from the flight line, jet engines, and associated equipment in the Air Force. She conducted testing and determined that the Veteran has current mild to severe sensorineural hearing loss (SNHL) in the right ear, and moderate to profound SNHL in the left ear, as well as constant tinnitus. She opined that it is at least as likely as not that the current disabilities are related to his prolonged exposure to the high decibel levels of jet aircraft noise during military service. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss and tinnitus. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). While a remand for a more elaborately explained opinion could be undertaken, the October 2018 report is adequate for the purposes of adjudication. The examiner based her conclusion on an examination of pertinent facts in the claims file and current diagnostic findings. She explained that the Veteran’s prolonged exposure to high decibel noise levels during Air Force service was sufficient to have caused the current bilateral hearing loss and tinnitus. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds her opinion persuasive, particularly given the Court’s discussion of evidence indicating minimal post-service occupational noise exposure, and the lack of documentation of post-service recreational noise exposure. Thus, at a minimum, the evidence is at least in equipoise in showing that the Veteran’s bilateral hearing loss and tinnitus are attributable to service. In resolving all reasonable doubt in the Veteran’s favor, service connection is warranted. REASONS FOR REMAND The claims for prostate cancer and a urinary disability must be remanded for development consistent with the parties' Joint Motion. Specifically, in determining that the Veteran was not exposed to herbicide agents while serving on temporary duty (TDY) at Eglin Air Force Base in service, the Board did not discuss an article submitted by the Veteran indicating that there were nine locations at Eglin where herbicide agents were stored, disposed of, and loaded. The Court further noted that despite a response from the Defense Personnel Records Information Retrieval System (DPRIS) indicating that the Veteran’s TDY records were located in his Air Force Form 7, within his official military personnel file (OMPF), those records have never been requested. A remand is required in order to request the above records. Upon obtaining the records, a further inquiry to the Joint Services Records Research Center (JSRRC) must be made to attempt to confirm any herbicide agent exposure. The JSRRC must consider any newly-obtained TDY records, the article submitted by the Veteran in May 2015 concerning nine locations at Eglin involving herbicide agents, and an additional article in this regard submitted by the Veteran in October 2018. The matters are REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity to obtain the Veteran’s official military personnel file, to specifically include his Air Force Form 7 and/or any documents concerning his temporary duty assignment(s) at Eglin Air Force Base. 2. Attempt to verify with the U.S. Army Joint Services Records Research Center (JSRRC) whether the Veteran was exposed to herbicide agents at Eglin Air Force Base. The JSRRC must consider the following: • All personnel records concerning the Veteran’s temporary duty at Eglin Air Force Base • Article received by VA in May 2015 entitled, Agent Orange and Eglin Field, discussing nine locations at Eglin where herbicide agents were stored, disposed of, and loaded. • Article received by VA in October 2018, entitled, The Testing of Spray Equipment and Ecological Impacts of the Programs at Eglin Air Force Base, Florida. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel