Citation Nr: 20021679 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-01 354 DATE: March 26, 2020 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. Entitlement to service connection for low grade transitional cell carcinoma of the gallbladder is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of the removal of the gallbladder is denied. Entitlement to service connection for bladder cancer is denied. REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. A left ear hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is not a current left ear hearing loss disability for VA purposes. 2. The Veteran does not and has not been diagnosed with carcinoma of the gallbladder. 3. A heart disability was not manifest in service, within one year of service, and is not otherwise related to service. 4. Hypertension was not manifest in service, within one year of service, and is not otherwise related to service. 5. Problems regarding the gallbladder necessitating its removal and any residuals related to that removal were not manifest in service and are not otherwise related to service. 6. Bladder cancer was not manifest in service, within one year of service, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). 2. The criteria for entitlement to service connection for low grade transitional cell carcinoma of the gallbladder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 5. The criteria for entitlement to service connection for residuals of the removal of the gallbladder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 6. The criteria for entitlement to service connection for bladder cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from April 1966 to March 1970. As an initial matter, the Board notes that there is some confusion as to whether the low grade transitional cell carcinoma involved the gallbladder or the bladder. The Veteran’s September 2016 claim clearly indicated that the claim was for carcinoma of the bladder. The December 2016 rating decision, however, mistakenly denied the issue of “Service connection for low grade transitional cell carcinoma of the gall bladder.” The November 2017 Statement of the Case (SOC) indicated that the issue on appeal involved cancer of the gallbladder and to continue the claim for entitlement to service connection for cancer of the bladder the Veteran would have to appeal the August 2017 rating decision denying that issue. Again, review of the lay and medical evidence, including the Veteran’s statements during the February 2020 Board hearing, clearly demonstrate that the Veteran’s claim involves bladder cancer. As such, the issue has been listed as above. While the November 2017 SOC did not specifically adjudicate the bladder cancer issue, the basis for the RO’s denial is the same as that for bladder cancer and as the undersigned Veterans Law Judge heard testimony on the issue of entitlement to service connection for bladder cancer, the Board finds that VA has treated the issue of entitlement to bladder cancer as being in appellate status and it would prejudice the Veteran not to proceed with consideration of that issue. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 (2012). Certain diseases, to include organic diseases of the nervous system, cardiovascular-renal disease (including hypertension), and malignant tumors may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). As there is no evidence or claim that the Veteran was diagnosed with a hearing loss disability, heart disability, hypertension, or malignant tumor within one year of service the above provision is not applicable. Alternatively, a “veteran who, during active military, naval, or air 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 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease [including coronary spasm] and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). 38 C.F.R. § 3.309(e). NOTE 2 to 38 C.F.R. § 3.309(e) specifically indicates that ischemic heart disease does not include hypertension. In addition, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam-era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” The report does not specify whether the designated (sometimes called “tactical”) herbicides or readily available commercial herbicides were used. Special consideration of herbicide exposure on a facts-found or direct basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases where actual exposure to the herbicide or its residue may have occurred. If exposure is shown on a direct basis, this allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of U.S. servicemen in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. A Veterans Benefits Administration internal manual provides that if a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure may be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. In DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), the Federal Circuit held the internal manual is used to guide VA adjudicators and does not establish substantive rules. The Federal Circuit specifically noted that the Board is not bound by the internal manual. See also Overton v. Wilkie, 30 Vet. App. 257 (2018). When relying on any internal provision, the Board must independently review the matter and if, after such review, the Board chooses to rely on the internal manual as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he has a right and left ear hearing loss disability due to noise exposure or exposure to jet fuel while in service. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records include audiograms at entrance and separation. The March 1970 separation audiogram showed threshold shifts at multiple frequencies and in the left ear hearing acuity was at 25 decibels at 500 Hertz. Hearing acuity at all other frequencies was at 20 decibels or lower. A contemporaneous March 1970 Report of Medical History included the Veteran’s denial of a history of hearing loss. The Veteran was afforded a VA audio examination in December 2016. The examiner noted that the Veteran worked as a jet engine mechanic and had a high probability of hazardous noise exposure. The Veteran discussed experiences with significant noise exposure during service. The Veteran denied the use of hearing protection during service. The Veteran reported a sudden sensorineural hearing loss in his right ear in October 2015, for which he reported treatment with oral and intratympanic steroids with no improvement. He denied any hearing problems until his recent sudden decrease in his right ear. An audiogram showed a right ear hearing loss disability for VA purposes, but not a left ear hearing loss disability for VA purposes. The examiner concluded that the Veteran’s right ear hearing loss disability was not at least as likely as not caused by or a result of an event in service. The rationale stated that although the Veteran’s in-service audiograms showed a significant threshold shift for both ears, hearing remained in the normal range at separation and he reported no hearing problems until experiencing a sudden sensorineural hearing loss in the right ear in October 2015. The Veteran did not recall any trauma specific to his right ear in service and current hearing thresholds in the left ear was still in the normal range. The type of idiopathic hearing loss seen in the right ear was not likely to have been a result of military noise exposure. In support of his claim, the Veteran submitted an article discussing how exposure to jet fuel contributed to hearing problems. During his February 2020 Board hearing, the Veteran reported in-service noise exposure from jet engines working on the flight line and in a test cell. The Veteran noticed gradually decreased hearing acuity over the years following separation from service. The Board concludes that the Veteran does not have a current diagnosis of a left ear hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2016 VA examination report included audiometric testing results that failed to show a left ear hearing loss disability for VA purposes. While the Veteran believes he has a current diagnosis of a left ear hearing loss disability, he is not competent to provide a diagnosis in this case. VA regulations have specifically defined what constitutes a hearing loss disability for VA purposes based on specific diagnostic testing results and the evidence does not support that the Veteran meets that criteria. Consequently, the Board gives more probative weight to the medical evidence of record. 2. Entitlement to service connection for low grade transitional cell carcinoma of the gallbladder As noted above, the RO mistakenly adjudicated the issue of entitlement to service connection for cancer of the gallbladder, rather than cancer of the bladder. There is no lay or medical evidence as to cancer of the gallbladder. As such, the Board concludes that the Veteran does not have a current diagnosis of carcinoma of the gallbladder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 3. Entitlement to service connection for a heart disability 4. Entitlement to service connection for hypertension 5. Entitlement to service connection for residuals of the removal of the gallbladder 6. Entitlement to service connection for bladder cancer The Veteran contends that he has a heart disability, hypertension, residuals of the removal of the gallbladder, and bladder cancer due to in-service exposure to Agent Orange during his service in Thailand. The Veteran’s service records document service at U-Tapao Royal Thai Air Force Base (RTAFB) as a jet aircraft mechanic during the Vietnam-era. The Veteran’s service treatment records do not include complaints, treatment, or diagnoses related to any of the claimed disabilities. In February 1969 the Veteran was seen for a one-month history of chest pain, but no specific heart diagnosis was made, and subsequent examinations specifically indicate no heart diagnosis. The Veteran’s March 1970 Report of Medical Examination prior to separation included normal examination findings as to the currently affected systems, including a blood pressure of 108/64 mmHg. The Veteran does not contend that any of the claimed disabilities had their onset in service. Instead, as noted above, he asserts that their post-service onset was due to in-service Agent Orange or other herbicide exposure. A November 2016 VA memorandum concluded that there was insufficient information available for the Joint Services Records Research Center (JSRRC) required to verify herbicide exposure in Thailand. The Veteran was afforded a VA heart examination in October 2017. The examiner diagnosed valvular heart disease. The Veteran had been diagnosed with aortic stenosis in 2015 after an echocardiogram showed a heart murmur. There was no history of rheumatic fever or valve surgery. The etiology of the aortic stenosis was noted to be unknown. No specific opinion as to the etiology of the disability was provided. In his January 2018 substantive appeal, the Veteran argued that his disabilities were the result of in-service exposure to Agent Orange and jet fuel. He specifically noted that he had a 2-week training that took place along the base perimeter fence. During the Veteran’s February 2020 Board hearing, the Veteran alleged that his problems were due to Agent Orange exposure during his service in Thailand. The Veteran reported that he worked on the flight line and that he also did some training around the perimeter of the flight line. Specifically, he indicated that exposure occurred from crawling and different training activities in the dust around the perimeter, similar to service members with security duties around the perimeter. All disabilities had started in the past 4 years. The Veteran also believed that his hypertension could have been caused or aggravated by his heart disability. In support of his claims, the Veteran submitted various treatise evidence discussing the association between Agent Orange and cancer. The article noted that there was limited or suggestive evidence of an association between Agent Orange and bladder cancer. A gallbladder cancer article did not include any information directly relevant to the case at issue. The Board concludes that there is insufficient evidence to establish exposure to Agent Orange or other herbicide agents during the Veteran’s service at U-Tapao RTAFB. There is no lay contentions or other evidence to suggest regular service in the defoliated areas of the base perimeter at U-Tapao RTAFB. The Veteran’s service on the flight line does not conclusively demonstrate exposure to herbicides. In a July 2017 notice of disagreement, the Veteran reported that his duties involved breathing in herbicide and defoliant chemicals and that he trained as part of an augment team. To the extent that the Veteran was involved in training activities in proximity to the base perimeter, the evidence of record does not demonstrate exposure to Agent Orange and other herbicides. The Veteran did not recall herbicides being sprayed during that period of training or anything else to directly demonstrate breathing exposure to herbicides. Moreover, the objective for defoliation was to clear vegetation for security reasons to have a clear line of sight to identify and repel intruders. It is not reasonable that herbicide would be applied to roads, walkways, runways, or aircraft parking aprons or during nearby training. It is not reasonable that training be performed in areas intended to remain clear to engage insurgents. During the Board hearing, the Veteran testified about training for one half day near the perimeter. When asked about the nature of the training and how he contacted the herbicide, he responded vaguely, “Probably from the dust…the training, crawling, different stuff.” There is no evidence to show that there was overhead, aerial spraying of herbicide in Thailand, which is supported by the Veteran’s testimony during his Board hearing. Given the foregoing, the Board assigns insufficient credible weight to the claimed exposure to herbicide. The Board has considered whether the claims could be granted on some basis other than the claimed exposure to herbicides but concludes that the claimed disabilities clearly had their onset many years after service and there is no competent evidence to otherwise suggest that any of them were related to service. The sole evidence in support of the Veteran’s claims is his lay statements. As to the Veteran’s general contention is that the claimed disabilities were incurred as the result of exposure to herbicides, he is competent to report symptoms related to his claimed disabilities; however, there is not a continuity of symptoms from service and the Veteran is not otherwise competent to link these disabilities to his active service based on his lack of demonstrated medical expertise and the complexity of attributing the disabilities to exposure to herbicides. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as diabetes mellitus, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, none of the claimed disabilities was not noted during service or within one year of separation from service. Moreover, there is not a clear contention of a continuity of symptoms from service that could serve as a basis for granting the claim pursuant to the above provisions. As such, the Board finds that there is no credible contention of a continuity of associated symptoms or problems from service and the provisions of 38 C.F.R. § 3.303(b) are not for application. In summary, the Veteran is not competent to attribute his heart disability, hypertension, residuals of the removal of the gallbladder, or bladder cancer to his active service, to include exposure to herbicides. There is no evidence of a chronic disability during service or for many years after service. There is no medical evidence linking any of the claimed disabilities to service. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the service connection claims. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss disability is remanded. As noted above, the Veteran submitted an article discussing how exposure to jet fuel contributed to hearing problems. In part, the article discussed a study and that, “While research has tied fuel vapors to hearing problems in the past, Guthrie’s study is among the first to definitively link JP-8 with auditory processing dysfunctions – changes that occur inside the brain rather than the ear.” The December 2016 VA examination report did not discuss the potential for jet fuel (JP-8) exposure during service affecting the Veteran’s hearing acuity. As such, a remand for an addendum opinion is necessary with respect to the Veteran’s right ear hearing loss disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right ear hearing loss disability is at least as likely the result of his in-service exposure to jet fuel. In providing the above opinion, the medical professional is requested to consider, and reconcile to the extent necessary, the Veteran’s submission regarding exposure to jet fuel contributing to hearing problems. 2. After completing the above development, readjudicate the Veteran’s claim. If a complete grant of benefits is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.