Citation Nr: 21061860 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 09-33 589 DATE: October 5, 2021 ORDER Entitlement to service connection for benign prostatic hyperplasia (BPH) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 15, 2011 is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's BPH began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for BPH are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision. These matters were remanded by the Board in April 2012. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2015. A transcript of that hearing is of record. These matters were also remanded by the Board in April 2015, October 2019, December 2020, and June 2021. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for prostate enlargement The Veteran contends that his enlarged prostate or benign prostatic hyperplasia (BPH) is the result of his heavy lifting and exposure to chemicals such as benzene as a heavy fuel mechanic in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 Board concludes that, while the Veteran has a current diagnosis of BPH, and evidence shows that his military occupational specialty (MOS) was engineer equipment repairman, which is consistent with heavy lifting and exposure to chemicals contained within the fuel used in the machinery he worked on, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of enlarged prostate or BPH began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with BPH until 2008, decades after his separation from service. The Veteran does not contend, and the record does not reflect, that the enlarged prostate began during service. The Veteran believes that his activities during service exposed him to chemicals such as benzene, and that this exposure caused his BPH. A December 2019 VA medical opinion noted complaints of urethral discharge on two occasions in the Veteran's service treatment records (STRs), in June 1964 and January 1966. Both times the culture results revealed a diagnosis of gonorrhea, which was treated and resolved, per the clinician. The clinician opined that there was no diagnosis of prostate enlargement during active duty service, and there is no credible medical evidence to support a causative link between chronic prostate enlargement and acute gonorrheal infection. The clinician concluded that a nexus is not established. Another addendum opinion from that month found no credible medical evidence to support a causal link between prostate enlargement and exposure to Agent Orange or other herbicides. A June 2021 VA medical opinion also found that the Veteran's BPH was less likely than not incurred in or caused by service, and specifically addressed the Veteran's contentions. The rationale was that there is no relationship between exposure to chemicals, heavy lifting, and the development of BPH. The clinician explained that review of current medical literature does not support such a relationship. The clinician explained that the risk factors for prostate gland enlargement include aging, family history, diabetes and heart disease, and obesity. These medical opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, they establish that the Veteran's BPH is not at least as likely as not related to an in-service event. The September 2021 brief from the Veteran's representative argues that the examiner did not adequately assess or acknowledge that the Veteran's condition can be caused by exposure to benzene, a known carcinogenic. The record does not indicate that the Veteran has the medical training necessary to provide an opinion on a medically complex issue, such as the etiology of BPH. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran's belief that exposure to benzene caused his enlarged prostate is not competent medical evidence. Additionally, the Board notes that the Veteran has not been diagnosed with prostate cancer, and the Veteran's personal belief that benzene causes BPH is not adequate grounds to find that the examination was inadequate. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. Specifically, the December 2020 and June 2021 remands instructed the examiner to discuss 1) the Veteran's in-service acoustic trauma, 2) the January 1964 STR showing a 15-decibel downward shift at 2000 Hertz in the right ear and a 10-decibel downward shift at 3000 Hertz in the right ear, 3) the Veteran's contention that his condition is realted to in-service heavy lifting and exposure to diesel fuel containing benzene, and 4) the December 2020 brief citing medical articles in support of a finding that noise exposure at an early age results in hearing loss that is typically not evident on routine audiologic testing at the time, and only becomes evidence when unmasked by the aging treatment. Unfortunately, the June 2021, July 2021, and August 2021 medical opinions do not follow these instructions. The most complete opinion is from August 2021 and generally states that there was no significant threshold shift in service without discussing the treshold shift identified by the remand. The opinion also vaguely references awareness of the Veteran's MOS and responsibilities in service without identifying what that MOS was or discussing the Veteran's specific contention that he worked as a heavy fuel mechanic and was exposed to loud noises from the machines. The August 2021 opinion also includes a statement that the Institute of Medicien study on military noise exposure and hearing loss has reported that there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-inducing hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The opinion does not discuss the article cited by the Veteran's representative and referenced in the remand. Another remand is required to cure these defects. Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU prior to December 15, 2011 is remanded. Finally, because a decision on the issue remanded above could significantly impact a decision on the issue of entitlement to a TDIU prior to December 15, 2011 the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent or greater probability) related to in-service acoustic trauma. The opinion offered must be supported by a complete rationale. The examiner must discuss 1) the Veteran's report of in-service acoustic trauma as a heavy fuel mechanic or engineer equipment repairman; 2) the January 1964 STR showing a 15-decibel downward shift at 2000 Hertz in the right ear and a 10-decibel downward shift at 3000 Hertz in the right ear, as compared to the July 1963 entrance audiogram; 3) the Veteran's contention that his condition is related to in-service heavy lifting and exposure to diesel fuel containing benzene, and 4) the December 2020 brief citing the medical article "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth" in support of a finding that noise exposure at an early age results in hearing loss that is typically not evident on routine audiologic testing at the time, and only becomes evident when unmasked by the aging process; and 5) a May 2016 VA treatment note indicates that a January 2015 stroke caused loss of hearing in the right ear. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to December 15, 2011. Ensure that the addendum opinions discuss the specific contentions indicated by the remand instructions. If they do not, obtain a new opinion that addresses the contentions. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.