Citation Nr: 19123796 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 15-37 536 DATE: April 2, 2019 ORDER Entitlement to service connection for hearing loss is granted. REMANDED Entitlement to service connection for acute promyelocytic leukemia is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss had its onset in-service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) from July 2015 and September 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a November 2018 Board hearing. The hearing transcript is of record. Entitlement to service connection for hearing loss Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristics manifestations of the disease to the required degree during that time. Id. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a chronic disease was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. The Veteran contends that he incurred bilateral hearing loss as a result of noise exposure from his time in the artillery. He stated he did not wear ear protection. The Veteran’s service records indicate the Veteran was assigned to an artillery unit in service. Therefore, the Board finds the Veteran’s statements that he experienced hazardous noise in service competent and credible. Thus, the Board concedes that the Veteran had in-service noise exposure. The Veteran’s service treatment records include an induction examination in January 1968 and a separation examination in January 1971. The Veteran underwent a puretone threshold test. Because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where necessary to facilitate data comparison the ASA standards will be converted to ISO-ANSI standard. The Board notes that it is VA’s policy to provide both ASA and ISO-ANSI measurements up until December 31, 1970, however given the Veteran the benefit of the doubt and noting the Veteran’s separation examination was in January 1971, the Board will consider the record metrics under both standards. The Veteran’s January 1968 entrance examination included a puretone threshold test which demonstrated: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X 0 (5) LEFT 0 (15) 0 (10) 0 (10) X 0 (5) The Veteran’s January 1971 separation examination included a puretone threshold test which demonstrated: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) X 10 (15) LEFT 10 (25) 10 (20) 10 (20) X 10 (15) The Veteran underwent a VA audiological examination in August 2016. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 55 45 70 65 LEFT 25 50 45 70 85 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner opined that the Veteran’s hearing loss is not at least likely as not caused by a result of an event in service. The examiner reasoned that the Veteran’s enlistment and separation examination show normal hearing in both ears for VA purposes and were performed using the current ANSI standards. The examiner did not find a significant threshold shift from entrance to separation. The Veteran testified at a November 2018 Board hearing. The Veteran testified that he was in close proximity to artillery guns firing. The Veteran stated that his left ear began ringing and he had some hearing loss. The Veteran further testified that after the artillery incident his hearing came back a little but deteriorated overtime. The Board initially finds that the Veteran has a current diagnosis of bilateral hearing loss sufficient for VA purposes. The Board further finds that the Veteran’s statement that he had high level noise exposure in service competent and credible due to the Veteran’s MOS. Therefore, the remaining issue is whether the Veteran’s hearing loss is related to his noise exposure in-service. The Board finds there is relative equipoise that the Veteran’s hearing loss began in-service. The Veteran’s puretone threshold was above 20 for 500 hertz upon separation. As noted in Hensley, normal auditory thresholds vary from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Further, the Board observes that the record does show that there was a threshold shift in every category recorded of 10 hertz. The Board is cognizant that the August 2016 examiner found there was no significant threshold shift; however, the examiner did not explain why a 10 hertz shift at every recorded decibel level was not a significant shift. Thus, the VA opinion is inadequate in that regard and lessens the probative value of the overall opinion. Accordingly with resolution of reasonable doubt in the Veteran’s favor, and based on the Board’s findings and conclusions, an award of service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS FOR REMAND Entitlement to service connection for acute promyelocytic leukemia The Veteran contends that his current acute promyelocytic leukemia is related to his exposure to an herbicide or in the alternative related to his service-connected prostate cancer, specifically the treatment for his prostate cancer. The Veteran underwent a VA examination in April 2015. The examiner diagnosed the Veteran with acute promyelocytic leukemia. The examiner opined that the Veteran’s leukemia is highly unlikely due to the treatment of prostate cancer and highly unlikely aggravated by prostate cancer. The examiner reasoned that they are completely different cell lines. The Board finds that the April 2015 examiner’s opinion is inadequate for adjudication. First, the examiner only provided a secondary medical opinion concerning the Veteran’s leukemia. The Veteran alternatively argues that his leukemia is due to exposure to an herbicide. The Board notes that acute promyelocytic leukemia is not a disability which is entitled to the herbicide agent presumption. However, this claim must also be reviewed to determine whether service connection can be established on a direct basis as due to herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Second, the examiner’s rationale that the Veteran’s treatment for prostate cancer did not cause or aggravate the Veteran’s leukemia because they are different cell lines was not an explanation as why the actual treatment for the prostate cancer did not cause or aggravate the Veteran’s leukemia. Therefore, the Board a remand is warranted to provide an addendum opinion. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s acute promyelocytic leukemia. The examiner should provide the following opinions: (a.) Whether the Veteran’s promyelocytic leukemia is at least as likely as not due to exposure to an herbicide agent. i. The examiner must address the literature the Veteran submitted that indicates leukemia is linked to benzene. ii. The examiner must address the literature the Veteran submitted that indicates children with parents that were exposed Agent Orange have a higher chance of having AML. (b.) Whether the Veteran’s promyelocytic leukemia is at least as likely as not proximately due to service-connected prostate cancer, or alternatively, aggravated beyond its natural progression by service-connected prostate cancer or the treatment for prostate cancer. i. The examiner must address the literature the Veteran submitted that indicates that certain kinds of chemotherapy are risk factors for contracting leukemia. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Batten, Robert