Citation Nr: 19150447 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 16-05 814 DATE: June 27, 2019 ORDER Entitlement to service connection for bladder cancer is dismissed. Entitlement to service connection for kidney cancer is dismissed. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicide agents, is denied. REMANDED Entitlement to a separate rating for dizziness associated with service-connected tinnitus is remanded. FINDINGS OF FACT 1. At a pre-hearing conference and during the September 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for bladder cancer. 2. At a pre-hearing conference and during the September 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for kidney cancer. 3. The Veteran is receiving the maximum schedular rating for bilateral tinnitus. 4. The Veteran’s current prostate cancer disability did not have onset during active service, was not caused by active service, to include exposure to herbicide agents, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for bladder cancer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for kidney cancer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for entitlement to a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102. 3.159, 4.87, Diagnostic Code 6260 (2018). 4. The criteria for entitlement to service connection for prostate cancer, to include as secondary to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 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 August 1966 to August 1970 with additional reservice service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in August 2015. A statement of the case (SOC) was issued in December 2015. The Veteran perfected his appeal through a substantive appeal (via a VA Form 9) in February 2016. In September 2018, the Veteran testified in a videoconference hearing before the undersigned. A copy of the hearing transcript has been associated with the claims file. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). In the present case, the Veteran withdrew the issues currently on appeal. Specifically, during the September 2018 videoconference hearing, the Veteran indicated that he was no longer interested in pursuing his appeal as to the issues of entitlement to service connection for bladder cancer and kidney cancer and desired to withdraw his appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these two issues and they are dismissed. Service Connection Service connection may be established for a disability resulting from diseases or injuries that are clearly present in service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303. In addition, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). 1. Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicide agents, is denied. The Veteran has claimed entitlement to service connection for a prostate cancer disability, asserting that his prostate cancer was a result of exposure to an herbicide agent. Specifically, the Veteran testified that his original MOS was that of a cook and that he cross trained as an Aircraft Life Support Specialist. The Veteran’s AFSC (92250) also reflects that he was a Personal Equipment Specialist/Aircrew Life Support Specialist. The Veteran further testified that his duties included touching, entering, and cleaning C-123Ks daily which were contaminated with an herbicide agent, namely Agent Orange. Additionally, the Veteran has asserted that this exposure to an herbicide agent during service was the cause of the prostate cancer that was diagnosed decades later. A review of the Federal Register reveals that some C-123s were used to spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307 (a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. The affected reserve units and dates of service for affected crew members were those assigned to Pittsburgh International Airport, Pennsylvania (1972-1982), Westover Air Force Base and Hanscom Field Air Force Base, Massachusetts (1972-1982), and Lockbourne/Rickenbacker Air Force Base, Ohio (1969-1986). The affected active duty units and dates of service for affected crew members were as follows: Hurlburt Auxiliary Field, Eglin Air Force Base, Florida (1970-1973), Langley Air Force Base, Virginia (1962-1963, 1970-1973), Luke Air Force Base, Arizona (1970-1973), Tainan Air Field, Taiwan (1969-1970), Howard Air Force Base, Panama (1970-1973), Osan Air Base, South Korea (1970-1973), and Clark Air Force Base, Philippines (1969-1970). In this regard, the Board notes that the Department of Defense maintains a list of all locations outside the Republic of Vietnam in which recorded herbicides were used and/or stored. The records show that herbicide agents were not used, tested, or stored at Travis Air Force Base. Moreover, Travis Air Force Base was not on any supply line for transporting Agent Orange to or from Vietnam. VA has published a list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. Those codes for enlisted personnel are as flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4314-4359). See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. Thus, to warrant presumptive exposure based on contact with a C-123, a Veteran must have had duties at one of the above listed places, but also have had a duty that entailed that he or she regularly and repeatedly operated, maintained or served onboard C-123 aircraft. If a Veteran was exposed to an herbicide agent during active service, certain specific, listed diseases, including prostate cancer, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied, and provided that the disease becomes manifest to a degree of 10 percent or more at any time after service. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning first to an analysis of the Veteran’s claim for service connection on a presumptive basis, the Veteran asserts that his current prostate cancer disability was caused by exposure to Agent Orange in service. Here, despite a handwritten caption noting that “Vietnam was hot” beneath a photo of aircraft submitted by the Veteran, there is no evidence that the Veteran ever served in the Republic of Vietnam. Notably, the Veteran’s service treatment records and personnel records do not indicate any service in Vietnam; further, the Veteran’s DD Form 214 reveals that the Veteran did not have any years, months, or days of foreign service. Additionally, the Veteran asserted in his September 2018 Board hearing testimony that it was his belief that he was exposed to Agent Orange from contaminated aircraft, to specifically include C-123K aircraft, during service when he was stationed as a Life Support Specialist at Travis Air Force Base in Fairfield, California with the 60th Supply Squadron. The Veteran’s DD Form 214 indicates that the Veteran was stationed at Travis Air Force Base. The Veteran also noted that he was stationed at Castle Air Force Base in Sacramento, California. The Veteran, who was a Personal Equipment Specialist/Aircrew Life Support Specialist, testified that he went onto aircraft on a daily basis. This evidence falls squarely into the specifically designated set of Air Force personnel with certain AFSCs, permanently assigned to one of the affected aircrafts, who regularly and repeatedly served onboard the C-123 aircraft. However, even if C-123 aircraft landed at Travis Air Force Base or, alternatively, Castle Air Force Base, this still would not meet the C-123 presumption requirements. This presumption only applies to those particular C-123s that were actually used to spray herbicide agents in Vietnam, and to personnel who “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft,” meaning that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). The list of affected reserve units and locations for the Operation Ranch Hand (ORH) herbicide-spraying C-123 aircraft does not include Travis or Castle Air Force Base. In sum, the C-123 herbicide exposure presumption is not applicable in this case. 38 C.F.R. § 3.307 (a)(6)(v). Furthermore, in a July 2015, a Formal Finding on the Inability to Corroborate Agent Orange Exposure in Vietnam was issued by the Joint Service Records Research Center (JSRRC). In this regard, a Personnel Information Exchange System (PIES) request was received in July 2014, yielding no evidence of exposure to Agent Orange exposure or service in an area where Agent Orange was used. In January 2015, a letter was sent to the Veteran requesting information or evidence of his claimed exposure; no response was received. In February 2015, another request was sent to PIES for specific dates of service in Vietnam and verification of exposure to herbicides. In April 2015, a negative response stating that no record of exposure to herbicides was found. In May 2015, a follow-up letter was sent to the Veteran requesting information as to how he was exposed to herbicides; no response was received. The JSRRC coordinator then concluded that a review of the Veteran’s personnel files, DD Form 214, and service treatment records was performed and that there was no documentation or other evidence showing that the Veteran was in Vietnam or any other location where herbicides were used. It was also determined that there was insufficient evidence to corroborate exposure to Agent Orange and insufficient information to sent to the U.S. Army and JSRRC, the Marine Corps, or National Archives and Records Administration (NARA) for further research. Finally, the Veteran has also asserted that he was exposed to Agent Orange on while touching, entering, and cleaning C-123K aircraft. Although the Veteran has stated that he believes these C-123K aircraft had Agent Orange on them, he has not been shown to be competent to identify herbicide agents for which presumptions of service connection may apply. 38 C.F.R. § 3.307 (a)(6). In fact, he has not been shown to be competent to assess that any chemicals at all were on the aircraft, let alone the nature or identity of any such chemicals. The Board finds that a lay person is not competent to make such assessments. Therefore, after carefully considering the pertinent evidence, the Board finds that the Veteran’s claim for service connection for a prostate cancer disability as a result of exposure to herbicide agents, to include exposure through C-123K aircraft, must be denied. In addition, the evidence fails to establish that the Veteran is entitled to service connection for his prostate cancer disability on a direct service connection basis. Although the Veteran has a diagnosis of a prostate cancer disability, there is no evidence of the other two elements required for a direct service connection, an in-service incurrence or aggravation of a disease or injury, and a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. Here, the Veteran’s service treatment records do not contain any mention of any prostate problems or related symptoms during service. Similarly, the Veteran’s June 1970 separation Report of Medical Examination does not indicate any prostate problems or symptoms. In this regard, the medical provider checked “Normal” for the “G-U System.” Additionally, on the June 1970 Report of Medical History, the Veteran himself specifically checked “No” for “Tumor, Growth, Cyst, Cancer.” Furthermore, in the Veteran’s April 1978 enlistment Report of Medical Examination for the USAFR, the Veteran’s G-U system was deemed clinically normal and the Veteran again denied having a tumor, growth, cyst, or cancer. Post-service, there are no records indicating that the Veteran sought treatment for a prostate condition within one year of separation from service, or for decades after service. Instead, the evidence of record indicates that the Veteran was diagnosed with prostate cancer in 2010, decades following service. Also, in 2010, the Veteran underwent a prostatectomy. The available record does not contain any medical opinion finding or indicating any causal connection or link between the Veteran’s current prostate cancer disability and his military service. In sum, the evidence does not support a direct service connection for the Veteran’s prostate cancer disability, as there is no evidence that the Veteran’s prostate condition was incurred or aggravated in service and there is no evidence that there is a casual relationship (nexus) between an in-service disease or injury and the Veteran’s current prostate cancer disability. The available evidence does not demonstrate that there was any in-service diagnosis or symptom of a prostate condition, and the Veteran specifically denied having any “Tumor, Growth, Cyst, Cancer” in his Report of Medical History conducted at separation; he also did not indicate any prostate problems on that separation form. There is also no evidence indicating any nexus between the Veteran’s current prostate cancer disability and service, and the Veteran was not diagnosed with prostate cancer until 2010, decades after separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the lapse of time between service separation and the earliest documentation of a current disability is a factor for consideration in deciding a service connection claim). Thus, the Board finds that the Veteran’s claim for service connection for a prostate cancer disability on a direct service connection basis must be denied. The Veteran has offered many lay statements about his current prostate cancer disability and its etiology, including linking it to in-service experiences where he believes he was exposed to Agent Orange. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, a determination of whether the Veteran was exposed to Agent Orange from contaminated aircraft, or what caused the Veteran’s current prostate cancer disability, requires specialized training for a determination as to what a chemical is, even if present, and specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. See also 38 C.F.R. § 3.303 (b). Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for a prostate cancer disability, to include as a result of exposure to herbicide agents, is denied. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a disability rating in excess of 10 percent for bilateral tinnitus is denied. Ten percent is the maximum schedular rating for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); 68 Fed. Reg. 25822 (June 2003); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). By way of background, in a January 2003 rating decision, the RO granted service connection for bilateral tinnitus and assigned a 10 percent disability rating, effective August 26, 2002. In a July 2015 rating decision, the RO noted that a 10 percent disability rating for recurrent tinnitus was the highest schedular evaluation under the law for the condition and that the available evidence failed to show that an extra-schedular grant was warranted. Here, the Veteran is receiving the maximum schedular rating for tinnitus. Thus, a higher schedular rating is not warranted. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to a separate rating for dizziness associated with service-connected tinnitus is remanded. The Veteran contends that a separate rating is warranted for his symptoms of dizziness as associated with his service-connected tinnitus. During an April 2015 audiology consult, the Veteran reported frequent episodes of dizziness which he stated onset in the last year. At such time, the Veteran could not recall any particular medication or event preceding the onset of dizziness. In another April 2015 audiology note, the Veteran reported that his dizziness onset in 2001. During the September 2018 hearing, the Veteran testified that he was involved in an in-service parachute incident, resulting in a head injury. It is the Veteran’s contention that since such time, he has had issues with dizziness. Also, the Veteran’s wife testified that she believed that the Veteran’s tinnitus was secondary to his service-connected bilateral hearing loss. A September 2018 VA treatment record reveals that the Veteran was referred for his symptoms of dizziness. The otolaryngologist noted that the Veteran had such symptoms dating back to 1986, following an accident in which he was dragged across a flight line for about 200 yards by a parachute at Travis Air Base. The Veteran described a dizziness that was constant in nature and which occurred daily. The physician also noted that the Veteran had constant tinnitus bilaterally. The physician stated that the Veteran had a diagnosis of mild to moderate sensorineural hearing loss bilaterally and that his dizziness was of an unknown etiology, but did not appear to be related to inner ear pathology. Here, additional clarification is necessary as considerable questions remain as to the nature and etiology of the Veteran’s dizziness. On remand, a VA examination should be conducted to determine the nature and etiology of the Veteran’s dizziness. The matters are REMANDED for the following action: 1. Schedule the veteran for an examination by an appropriately qualified physician to determine the nature and etiology of dizziness. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran, performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s dizziness was caused or aggravated by his service-connected tinnitus and/or bilateral hearing loss. If the examiner determines that the Veteran’s dizziness is not the product of a service-connected disability(ies), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s dizziness is related to any incident of service, including as due to being dragged down a flight line by a parachute. A report of the examination should be prepared and associated with the Veteran’s VA claims folder. The examiner is also requested to explain any opinion provided, to include supporting references. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.