Citation Nr: 20003306 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-59 777 DATE: January 14, 2020 ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as due Agent Orange exposure. Entitlement to service connection for a heart disorder, to include as due Agent Orange exposure. Entitlement to service connection for residuals of lung cancer, to include as due Agent Orange exposure. Entitlement to service connection for residuals of prostate cancer, to include as due to Agent Orange exposure. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. Entitlement to a temporary 100 percent evaluation due to convalescence for a service-connected disability. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran’s hearing loss is due to noise exposure during his active service. 2. The most probative evidence of record indicates that tinnitus began during service and has existed since that time. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in September 2019 and delivered sworn testimony via video conference hearing in Muskogee, Oklahoma.   Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record an address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in September 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary’s adjudication of the claim). Hearing loss At his September 2019 Board hearing the Veteran stated that during service he lived in close proximity to the flight line that included B-52 aircraft. He also indicated that he did not wear ear protection when firing at the practice range during service. First, there is current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The December 2015 VA hearing loss examination diagnosed left ear and right ear sensorineural hearing loss. See 38 C.F.R. § 3.385 (2019). The first element of service connection is thus met. Second, the Board finds that there was in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided competent and credible statements of exposure to loud noise during service, and such has been conceded by VA. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the Veteran’s hearing loss is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided competent and credible statements of hearing difficulties that have recurred since service. See Washington, 19 Vet. App. at 368; Caluza, 7 Vet. App. at 511. In an August 2019 report, a private audiologist, opined that the Veteran’s hearing loss was at least as likely as not initiated by noise exposure during active service. Although the examiner did not have access to the claims file, he relied upon the Veteran’s reports of noise exposure during service, which is not disputed in this appeal. Accordingly, the Board assigns significant probative value to this opinion as it was based upon relevant evidence and contained a supporting explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). In a September 2019 submission, a private examiner provided an opinion that the hearing loss was more likely than not related ot noise exposure during service. Likewise, the examiner was aware of the relevant evidence of record and provided a supporting explanation, to include injury to inner ear cochlea which begins a degenerative process. The Board thus assigns probative value to this opinion. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. Although a December 2015 VA examiner provided a negative opinion, the opinion substantially relied on the IOM report indicating that delayed-onset is not supported and is thus inadequate. See McCray v. Wilkie, No. 17-1875, 2019 Vet. App. LEXIS 1015, at *1-2 (Vet. App. June 18, 2019) (noting that “a medical text’s qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text”). Accordingly, this opinion is not significantly probative. As such, the most probative evidence of record demonstrates that hearing loss is related to active service. The third element is met; service connection is thus warranted. Tinnitus The Board finds that the evidence of record supports a finding of service connection for tinnitus. First, the Veteran reported current tinnitus at his September 2019 Board hearing. The Veteran is competent to do so, and the Board finds these statements credible as they have been consistent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation); Caluza, 7 Vet. App. at 511. Second, the evidence indicates that the Veteran’s tinnitus had onset during service. The Veteran’s asserted in various statements of record and at a Board hearing that his tinnitus began during service. The Board also finds these statements competent and credible as they also were consistent. See Charles, 16 Vet. App. at 374; Caluza, 7 Vet. App. at 511. For the same reasons as noted above, the Board finds the private nexus opinions significantly probative and the VA examination report not probative. Accordingly, all three elements of service connection have been met. Based on the foregoing, and resolving any doubt in the Veteran’s favor, service connection for the Veteran’s tinnitus is warranted. REASONS FOR REMAND The Veteran asserts that he has diabetes mellitus, a heart disorder, residuals of lung cancer, and a prostate cancer due to Agent Orange exposure during service. In particular, the Veteran asserts that he made two TDY trips to support a unit in Vietnam when he was stationed in the Philippines. Personnel records do not reflect such duty, and VA has been unable to verify the Veteran’s TDY trips. At his September 2019 Board hearing the Veteran indicated that the trips were each about two weeks in duration and took place between December 1969 and April 1970. Based on this new information of TDY dates not previously furnished, further development is warranted. In particular, the AOJ should attempt to verify the Veteran’s Vietnam service by conducting a search for TDY orders and/or pay records. The issues of service connection for hypertension, service connection for erectile dysfunction, and entitlement to a temporary 100 percent evaluation are related to the remanded issues and will be addressed pending development and review by the AOJ. The matters are REMANDED for the following action: Undertake any action deemed necessary to attempt to verify the Veteran’s reported TDY service in Vietnam, to include obtaining pay records and TDY orders. All attempts to verify the Veteran’s reported service in Vietnam must be documented in the claims file, and the RO should provide a formal finding if it is unable to verify the Veteran’s reported TDY service. Required notice must be provided to the Veteran and the representative (attorney). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.