Citation Nr: 21061520 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-45 062 DATE: October 4, 2021 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. Service connection for diabetes mellitus, to include claimed as due to herbicide exposure, is denied. Service connection for coronary artery disease (CAD), status-post bypass surgery, to include claimed as due to herbicide exposure, is denied. Service connection for prostate cancer, to include claimed as due to herbicide exposure, is denied. Service connection for acinic cell adenocarcinoma, status-post surgical resection, to include claimed as due to herbicide exposure, is denied. Service connection for hypertension, to include claimed as due to herbicide exposure, including as due to diabetes mellitus and/or a heart disorder, is denied. Service connection for a bladder disorder, status-post cystectomy, to include claimed as due to herbicide exposure, is denied. Secondary service connection for sleep apnea as due to diabetes mellitus and/or a heart disorder is denied. Secondary service connection for gastroesophageal reflux disease (GERD) as due to diabetes mellitus and/or a heart disorder is denied. Secondary service connection for renal deficiency as due to diabetes mellitus and/or a heart disorder is denied. Secondary service connection for shortness of breath as due to a heart disorder is denied. Secondary service connection for status-post bilateral pelvic lymphadenectomy as due to prostate cancer is denied. Secondary service connection for erectile dysfunction (ED) as due to prostate cancer is denied. FINDINGS OF FACT 1. The Veteran was not exposed to Agent Orange or herbicides during service. 2. The Veteran was exposed to acoustic trauma (loud noise) during service. 3. The current disabilities include right and left ear hearing loss, tinnitus, diabetes mellitus type II, CAD (status-post bypass surgery), prostate cancer, acinic cell adenocarcinoma, hypertension, a urinary bladder disorder (status-post cystectomy), sleep apnea, GERD, renal insufficiency, status-post bilateral pelvic lymphadenectomy, and erectile dysfunction. 4. Symptoms of hearing loss, tinnitus, diabetes, CAD, cancer, and hypertension were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 5. Bilateral hearing loss, tinnitus, diabetes, CAD, cancer, hypertension, and a bladder disorder did not have their onset during service and are not otherwise related to service. 6. There is no service-connected diabetes mellitus and/or heart disorder which secondary service connection for hypertension, sleep apnea, GERD, renal deficiency, or shortness of breath disorder may be granted. 7. There is no service-connected prostate cancer disorder to which secondary service connection for status-post bilateral pelvic lymphadenectomy or ED may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385. 4. Diabetes mellitus was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 5. Coronary artery disease was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 6. Prostate cancer was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 7. Acinic cell adenocarcinoma, status-post surgical resection, was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 8. Hypertension was not incurred in active service and may not be presumed to have been incurred therein, to include as due to diabetes mellitus and/or a heart disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. 9. The criteria for service connection for a bladder disorder, status-post cystectomy, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 10. The criteria for secondary service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 11. The criteria for secondary service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 12. The criteria for secondary service connection for renal deficiency have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 13. The criteria for secondary service connection for a shortness of breath disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 14. The criteria for secondary service connection for status-post bilateral pelvic lymphadenectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. 15. The criteria for secondary service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 1970 to July 1974. 1. Service Connection for Right Ear Hearing Loss is Denied. 2. Service Connection for Left Ear Hearing Loss is Denied. 3. Service Connection for Tinnitus is Denied. 4. Service Connection for Diabetes Mellitus is Denied. 5. Service Connection for CAD is Denied. 6. Service Connection for Prostate Cancer is Denied. 7. Service Connection for Acinic Cell Adenocarcinoma is Denied. 8. Service Connection for Hypertension is Denied. 9. Service Connection for a Bladder Disorder is Denied. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active 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. Bilateral sensorineural hearing loss, tinnitus, diabetes mellitus, CAD, and cancer are considered chronic diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in 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(a). While 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. For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that various disorders are related to service, to include claimed herbicide exposure during service. The June 2015 claim reflects the Veteran indicated that certain disorders were related to herbicide exposure during service. See June 2015 claim. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. See October 2015 VA audiometric examination report. In addition, there are current diagnoses of tinnitus, diabetes mellitus (type II), CAD, prostate cancer, acinic cell adenocarcinoma, hypertension, and a urinary bladder condition (status-post cystectomy). See May 2010, June 2013 private treatment records; see also March 2014, October 2015 VA treatment records. In this case, the herbicide agent presumption under 38 C.F.R. § 3.309(a)(6) is inapplicable as the service personnel records do not reflect service in the Republic of Vietnam during the period when herbicides were being applied. While the Veteran contends that various disorders are related to herbicide exposure during service, the evidence in the service personnel records, to include the service treatment records and DD Form 214, does not suggest exposure to herbicides during service. Under the facts of this case where there is no specific description of how Agent Orange was stored or transported or used, or as to when and how the Veteran might have specifically been in contact with Agent Orange, or how he would have recognized Agent Orange, the Veteran is also not competent to state that he was exposed to Agent Orange during service. In addition, an August 2015 formal finding issued by the Joint Services Records Research Center did not verify herbicide exposure. Further, earning the Vietnam Service Medal does not constitute duty or visitation in Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom, Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). For these reasons, the Board finds that the weight of the evidence shows no exposure to herbicide agents during service. As to service connection for hearing loss and tinnitus, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran was exposed to loud noise (acoustic trauma) while in service. The service personnel records reflect an occupational specialty of hull maintenance technician. The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of service. 38 U.S.C. § 1154(a). After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a hearing loss, tinnitus, endocrine, cardiovascular, or cancer, or bladder injury or diseases occurred during service, or that chronic symptoms of hearing loss, tinnitus, diabetes, CAD, hypertension, or cancer were manifested during service. The service treatment records, which are complete, show no relevant reports of injury, complaints, findings, diagnoses, or treatment related to hearing loss, tinnitus, diabetes mellitus, CAD, cancer, hypertension, or a bladder disorder. The June 1974 service separation examination report reflects the endocrine and cardiovascular systems were each clinically evaluated as normal. The July 1976 report of medical history related to entrance into reserve service (and two years after separation from active service), reflects the Veteran denied shortness of breath, pain for pressure in chest, heart trouble, and high or low blood pressure. Because the service treatment records are complete, and the Veteran sought treatment for various other symptoms during service, clinical testing including blood tests, pulse, and blood pressure monitoring were conducted during service, the Board finds that hearing loss, tinnitus, diabetes mellitus, CAD, hypertension, cancer, and a bladder disorder are conditions that would have ordinarily been recorded during service had they been present during service. In this case, the service treatment records reflect that the Veteran sought treatment for an ear cyst, smoke inhalation, finger pain, blurred vision, nasal congestion, and reported coughing. As the service treatment records are complete and show complaints and treatment for other disorders, the Veteran similarly would have reported or complained of hearing loss, endocrine, cardiovascular, cancer, or bladder disability symptoms, had such occurred during service. Additionally, routine blood tests ("panels") and blood pressure testing, which includes physical pressing on the pulse, would have noted such irregularities had they been present during service. For these reasons, the lay and medical evidence generated contemporaneous to service, which show no in-service hearing, endocrine, cardiovascular, cancer, or bladder injury or disease and no chronic symptoms of hearing loss, diabetes, CAD, hypertension, and cancer is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of hearing loss, endocrine, cardiovascular, cancer, or bladder disorder symptoms during service. Accordingly, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The Board next finds that the weight of the evidence shows that symptoms of hearing loss, diabetes, CAD, hypertension, and cancer were not continuous since service, including not to a degree of 10 percent within one year of service separation. The numerous VA and private treatment records reflect that hearing loss and tinnitus were not manifested until approximately 2015, over 40 years after service separation. A March 2014 VA treatment record reflects a prostate cancer diagnosis. May 2010 private treatment records reflect hypertension and CAD with bypass surgery in 2003. Various VA treatment records reflect the Veteran reported being diagnosed with diabetes in a 2008. In addition, the VA and private treatment records do not reflect that the Veteran was diagnosed with cancer within one year of service separation. Considered together with the absence of an in-service hearing, endocrine, cardiovascular, or cancer injury or disease or symptoms of hearing loss, diabetes, CAD, hypertension, or cancer during service, the 40-year gap between service and the onset and diagnosis of a hearing loss disorder, and a post-service diagnosis of hearing loss, tinnitus, diabetes, CAD, hypertension, and cancer is one factor that tends to weigh against a finding of continuous symptoms service separation. As the weight of the evidence demonstrates no "continuous" hearing loss, diabetes, CAD, hypertension or cancer symptoms since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms or symptoms manifested to a degree of 10 percent within one year of service separation are not met. 38 C.F.R. §§ 3.307, 3.309. The Board further finds that the weight of the evidence demonstrates that diabetes CAD, hypertension, cancer, and a bladder disorder, which each first manifested years after service, are not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which the disorders could be related. As analyzed above, the weight of the evidence shows no endocrine, cardiovascular, cancer, or bladder symptoms during service, that the Veteran did not otherwise sustain an endocrine, cardiovascular, or bladder injury during service, and that the Veteran did not even experience relevant symptoms of diabetes, CAD, hypertension, cancer, or a bladder disorder during service. In addition, any statement purporting to relate diabetes, CAD, hypertension, prostate cancer, acinic cell adenocarcinoma, or a bladder disorder to service would be based on the inaccurate factual premise of an in service injury, disease, or event, so would be of no probative value. Regarding direct service connection as to hearing loss and tinnitus, the October 2015 examiner opined that hearing loss and tinnitus were unrelated to service, to include acoustic trauma during service. The October 2015 VA examiner reasoned that hearing loss was first diagnosed many years after separation from service. The October 2015 VA examiner also reasoned that the Veteran reported first experiencing symptoms of mild hearing loss 14 years after separation from service and reported tinnitus beginning in approximately 2005. For these reasons, right and left ear hearing loss and tinnitus, which did not manifest until years after service, is not attributable service. For these reasons, the Board finds that the preponderance of the lay and medical evidence that is of record weighs against service connection for hearing loss, tinnitus, diabetes mellitus, CAD, hypertension, prostate cancer, acinic cell adenocarcinoma, and a bladder disorder based on chronic disease presumptions and direct service connection; consequently, the appeal as to these issues must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 10. Service Connection for Sleep Apnea is Denied. 11. Service Connection for GERD is Denied. 12. Service Connection for Renal Deficiency is Denied. 13. Service Connection for Shortness of Breath is Denied. 14. Service Connection for Status-Post Bilateral Pelvic Lymphadenectomy is Denied. 15. Service Connection for ED is Denied. The Veteran contends that he developed hypertension, sleep apnea, GERD, renal deficiency, and a shortness of breath disorder due to diabetes mellitus and/or a heart disorder. See June 2015 claim. The Veteran also contends that ED and a bilateral pelvic lymphadenectomy are related to prostate cancer. See June 2015 claim. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310. As discussed above, the evidence of record reflects the Veteran underwent bypass surgery in 2003, that CAD was diagnosed decades after separation from service, that diabetes was diagnosed in approximately 2008, and that prostate cancer arose in approximately 2014. (Continued on the next page) In the instant decision, the Board is denying service connection for diabetes mellitus, for a heart disorder (to include CAD), and for prostate cancer. As such, secondary service connection (See 38 C.F.R. § 3.310) for hypertension, sleep apnea, GERD, renal deficiency, a shortness of breath disorder, ED, and a bilateral pelvic lymphadenectomy is not warranted as a matter of law, whether or not the disorders were caused by diabetes, a heart disorder, and/or prostate cancer because there is no primary service-connected disability upon which secondary service connection may be granted. As the diabetes, heart, and/or prostate cancer disorders that may have caused or aggravated hypertension, sleep apnea, GERD, renal deficiency, a shortness of breath disorder, ED, and a bilateral pelvic lymphadenectomy is not a service-connected disability, service connection on a secondary basis must be denied as a matter of law. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.