Citation Nr: 21002802 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 17-13 597 DATE: January 15, 2021 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Herbicide exposure is conceded as the Veteran served in the United States Air Force, was stationed at the Royal Thai Air Force Bases (RTAFB) in Ubon, and was regularly in close proximity to the base perimeter. 2. Prostate cancer was diagnosed following active service. 3. The Veteran currently has bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. 4. The Veteran currently has tinnitus. 5. The Veteran's bilateral hearing loss is related to service. 6. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1970 to February 1974 and from April 1974 to April 1978. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Prostate Cancer 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 section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The Board notes that the Veteran's service personnel records show that he served in Thailand at the RTAFB in Ubon with a MOS of Weapons Control Systems Technician. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). 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." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops 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. 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 MOS, performance evaluations, or other credible evidence, then herbicide exposure should 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. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. 10(q). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange (AO) is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). The Veteran maintains that the barracks where he was stationed were in close proximity to the perimeter of the AFB. He has forwarded pictures in support of this claim. He further maintains that his MOS caused him to be close to the perimeter when performing his duties. Although there is no record of assignment to perimeter duty, the Board finds the Veteran's consistent assertions regarding time spent near the perimeter of the RTAFB in Ubon to be credible. Therefore, as there is no basis on which to question the Veteran's credibility and no evidence in the record to contradict his claims of perimeter contact, the Board finds that the Veteran was exposed to herbicide agents while he was stationed at the Royal Thai Air Force Base in Ubon and during the Vietnam era. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving in Thailand and that his prostate cancer can be presumed to be related to herbicide exposure in service. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hearing Loss and Tinnitus Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, bilateral sensorineural hearing loss (organic disease of the nervous system) and tinnitus are considered chronic diseases for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claims for service connection for hearing loss and tinnitus. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran maintains that his current hearing loss and tinnitus had their onset in service. He states that he was constantly exposed to jet engine noise while performing his duties in Ubon and that his hearing loss and tinnitus had their onset in service. The Veteran has consistently maintained that in his position as a Weapons Control System Technician he was responsible for servicing computer, radar, and optical systems on the AC 130 gunship and in that position he worked outside on the flight line to perform his duties maintaining the aircraft control systems. The Veteran has further testified that he spent his career in the service working in the aviation community, in and around airfields, in and around flight lines, and near the runway area. He reported that he was out on the flight line when the aircraft were actively turning on their engines and that he was in the hangar area when aircraft testing was in progress. He indicated that he was around aircraft noise his entire military career. He also reported that while stationed in Thailand, his base was in close proximity to the flight line. He stated that they were constantly testing engines. The engines would be tested at full throttle, in close proximity to where he was performing his duties. The Veteran’s wife indicated that shortly after his arrival in Thailand, the Veteran complained of ringing in his ears. She noticed that he was almost immediately having issues when engaged in conversations and often needed phrases to be repeated. The condition had steadily worsened over time. She also stated that he could not hear the dialogue at movies. In conjunction with his claim, the Veteran was afforded a VA examination in June 2015. At that time, decibel level readings of 15, 20, 25, 30, and 40 in the right ear and 25, 20, 25, 35, and 35 in the left ear were reported at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition was 78 percent in the right ear and 74 percent in the left ear. A diagnosis of bilateral sensorineural hearing loss was rendered. Following examination, the examiner opined that it was at least as likely as not that the Veteran’s hearing loss was caused by or a result of an event in military service. The examiner indicated that the Veteran had a significant shift in hearing while in service and had significant exposure solely from military service with no family history of ear problems. It was at least as likely as not that his hearing loss was related to military noise exposure. The examiner also opined that it at least as likely as not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran had a high history of noise exposure solely during service and as there was a known association between tinnitus and noise exposure, it was at least as likely as not that his tinnitus was related to noise exposure. An additional opinion was obtained in July 2015 as to the etiology of the Veteran’s tinnitus and hearing loss and their relationship to service. The examiner indicated that the Veteran's C-file had been reviewed. He stated that based on the Veteran’s report and documents in the C-file (DD 214 and/or other documents in the C-file) the Veteran was exposed to hazardous noise levels while in service. Hazardous noise exposure while in service was conceded. The examiner indicated that the Veteran’s reports of noise exposure and subjective report of hearing loss while in service were taken into consideration when rendering the opinion. He observed that electronic hearing testing conducted at enlistment, during service, and at discharge showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore, the evidence of record showed the Veteran did not have hearing injury while in service. The reviewer indicated that the thresholds measured while in service were within normal measurement variability. It was important to note no reference in this opinion was made to "normal hearing." The examiner indicated that he was familiar with the Hensley v Brown decision in 1993. All available evidence was considered by the examiner when rendering the opinion on hearing loss and/or tinnitus. The examiner noted that while many factors were involved, one critical issue for determining hearing loss/tinnitus related to noise exposure while in service was "did the veteran have a significant threshold shift beyond normal measurement variability/normal progression while in service?" He noted that the evidence in this case clearly and convincingly showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. The examiner further stated that it was also important to know behavioral measurements always involved some degree of variability and that such differences did not constitute injuries. A determination of significant threshold shift beyond normal measurement variability caused by or a result of noise exposure while in service was made by the expert in area (Audiologist) on a case by case basis after a careful review of all evidence. The reviewer stated that the evidence in this case clearly and convincingly showed the Veteran did not have hearing injury while in service. Therefore, the evidence of record clearly and convincingly rebutted, if so stated, the Veteran’s subjective report of hearing loss and/or tinnitus while in service. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner stated that based on electronic hearing testing conducted at enlistment, during service, and at discharge, it was his opinion the Veteran did not have hearing loss/hearing injury while in service. Delayed onset hearing loss and tinnitus due to noise exposure were unlikely to occur. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure could not be assumed to exist. Therefore, it was his opinion the Veteran's hearing loss (if any) and reported tinnitus (if Veteran reports tinnitus) were less likely as not caused by or a result of noise exposure while in service. Although the July 2015 VA examiner found that it was less likely that the Veteran's hearing loss was related to his period of service, he did note the acoustic trauma to which the Veteran was exposed in service. While it is true that objective testing was within normal limits during service, this does not account for the demonstrated functional impairment reported in lay evidence, including statements from the Veteran and his spouse. The Court's ruling in Hensley does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The lack of evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. As such, the Board finds the opinion of limited probative value. In addition, the June 2015 VA examiner, who also had the benefit of the claims folder and examined the Veteran, indicated that the Veteran’s hearing loss was at least as likely as not due to his military noise exposure. Given the foregoing, the opinions are at least in equipoise as to the whether the Veteran’s hearing loss had its onset in service. Given the Veteran's current hearing loss; his conceded noise exposure in service; his credible reports of symptoms of hearing loss in service; the credible statement from his spouse; his in-service military occupational specialty; his reports of continuous symptoms; and the medical opinions being in equipoise, reasonable doubt must be resolved in favor of the Veteran. As such, service connection is warranted for bilateral hearing loss disability. The Board also finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he and his spouse have stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. While the Veteran's service treatment records do not note any findings of tinnitus, the Veteran, by his own statements, has indicated that he had tinnitus in service. The Veteran has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the appellant experienced recurrent tinnitus symptomatology. As such, the evidence demonstrates credible evidence of conceded in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.