Citation Nr: 21062501 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-10 687A DATE: October 7, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for glioblastoma is granted. Entitlement to service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. There is a balance of evidence on whether the Veteran's tinnitus began in service and continued throughout the years after his service prior to his death. 2. There is a balance of evidence on whether glioblastoma multiforme (brain tumor) was due to service. 3. The Veteran died in October 2013 and the death certificate shows the immediate cause of his death was the now service-connected glioblastoma multiforme. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the Veteran's tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the Veteran's glioblastoma as due to herbicide exposure are met. 38 U.S.C. §1110, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §3.102, 3.159, 3.303. 3. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 1965 to August 1967. He died in October 2013. The appellant is his surviving spouse. The matters on appeal come before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed claims for service connection for glioblastoma, tinnitus, bilateral hearing loss, and posttraumatic stress disorder (PTSD) in June 2013, prior to his death. Following the Veteran's death, VA allowed the Veteran's surviving spouse to become the substitute appellant in relation to the June 2013 claims. The appellant also filed a claim in November 2013 for Dependency and Indemnity Compensation, in particular, claiming service connection for the cause of the Veteran's death. The March 2014 rating decision on appeal addressed all of these claims. Service connection for PTSD was granted, while service connection for glioblastoma, bilateral hearing loss, tinnitus and for the cause of the Veteran's death were denied. The appellant has appealed the denial of service connection for glioblastoma, bilateral hearing loss, tinnitus and for the cause of the Veteran's death. The appellant, her daughter, and another witness, L.S.H., provided testimony before the undersigned at a July 2021 virtual Board hearing. A transcript of that hearing is within the claims file. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Tinnitus Certain chronic diseases, including tinnitus, an organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; also see Fountain v. McDonald, 27 Vet. App. 258 (2015). In this case, VA recognized at the time of the decision on appeal that the Veteran served in the Republic of Vietnam as a radio teletype operator and was around mortar attacks, rocket attacks and small arms fire. Thus, VA conceded the Veteran had at least moderate in-service noise exposure. The claim is that he developed tinnitus as a result of that conceded in-service noise exposure. The Veteran's service treatment records are without any indication of tinnitus complaints or that is was otherwise noted. September 2013 VA clinical notes show the Veteran reported at an audiology appointment that he had bilateral "constant crickets that has been present for decades." In January 2014, the Veteran's wife submitted a statement indicating they met in 1972 and she recalled he already was reporting always hearing a sound like crickets in his ears. This suggests the tinnitus was already present at that time. In March 2014, the RO obtained a medical opinion. The examiner indicated it was unclear when the Veteran's tinnitus started, such that it is not possible to determine whether it was due to his in-service noise exposure. At the July 2021 Board hearing, the appellant indicated she met the Veteran when he was 25 and he complained of ringing in his ears at that time. During his lifetime, the Veteran was indeed competent to report his history of symptoms, to include ringing in the ears sounding like crickets, because this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Evidence against the Veteran's contentions consist of his failure to mention the tinnitus complaint when providing his medical history at the time of his service separation, and the overall lack of indications of tinnitus in service. Nevertheless, it must be acknowledged that the form used to obtain the Veteran's medical history at service separation does not specifically inquire as to tinnitus, and given the negligible impairment it typically produces, it may not be unreasonable for the Veteran to omit it from the report. Those factors, together with his reports to his wife that seemingly date his tinnitus to first occurring in service and existing ever since, lead the Board to find that there is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus initially manifested during his active service and continued ever since. When the evidence is in such relative equipoise, the Board must give the claimant the benefit of the doubt. See Gilbert, 1 Vet. App. 49. Accordingly, the Board finds that the criteria for service connection for tinnitus are met. Glioblastoma The appellant claims the Veteran's glioblastoma was caused by his in-service exposure to herbicides. The Board recognizes the Veteran was being treated for glioblastoma in 2013 and his death certificate shows glioblastoma multiforme was the primary cause of his death. Further, at the time of the March 2014 rating decision, the RO recognized the Veteran's service in the Republic of Vietnam in the Vietnam Era and, therefore, conceded his in-service exposure to herbicides. The question is whether the Veteran's glioblastoma was caused by his recognized exposure to herbicides in service. The Veteran's glioblastoma is not one of the recognized diseases presumed to be related to herbicide agent exposure, and thus, he is not entitled to a regulatory presumption of service connection. 38 C.F.R. § 3.309(e). Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). On this question, the Board finds that the evidence to at least be in equipoise. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of glioblastoma multiforme. As noted above, post-service treatment records show he was being treated for glioblastoma in 2013 and ultimately died from it in October 2013. In October 2016, a private physician, N.F.G., submitted a statement indicating the Veteran "died as a result of glioblastoma, having expired 10/15/2013. It is my opinion based on many epidemiologic studies that it is as likely as not that his tumor was caused by exposure to agent orange when serving in the military in Vietnam." In February 2017, the same physician submitted a nearly identical statement and, with this statement, provided copies of two studies relied upon in rendering the opinion. In May 2017, the appellant submitted a copy of an opinion related to another veteran, which found that Veteran's glioblastoma to be causally related to his in-service exposure. While the Board recognizes this evidence did not directly relate to the Veteran in this case, the evidence is nonetheless supportive of the appellant's contention. The RO did obtain a medical opinion in March 2017. The author of the opinion was a VA physician. This physician considered the private physician's opinion, including the studies referenced within, and found it less likely than not that the Veteran's glioblastoma was related to his in-service herbicide exposure. The physician indicated the findings in the report apparently show some people exposed to dioxin later developing cancers such as glioblastoma, and some not. The Board has weighed the evidence of record and while the claimed disability is not among the diseases for which service connection is presumed for those exposed to herbicides in service, resolving reasonable doubt in the appellant's favor, the Board finds that service connection for glioblastoma is warranted. In making this determination, the Board notes that the conclusions described in the October 2016 and May 2017 medical opinions are well explained with supporting evidence with respect to a link between the Veteran's disability and his active service. The Board recognizes the VA physician examined the same studies and found it less likely than not that a causal connection exists. This, therefore, appears to be evidence that is in relative equipoise as to whether the Veteran's glioblastoma was caused by his recognized in-service exposure to herbicides. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for glioblastoma are met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102. Dependency and Indemnity Compensation Service Connection for the Cause of the Veteran's Death To establish entitlement to service connection for the cause of a Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran died in October 2013 and his death certificate shows his immediate cause of death was glioblastoma multiforme. By way of the decision above, the Veteran's glioblastoma was found to have been caused by service. Under these circumstances, the Board concludes that a disability of service origin caused the Veteran's death, and that the criteria for service connection for the cause of the Veteran's death are met. 38 C.F.R. § 3.312. REASONS FOR REMAND Service Connection Bilateral Hearing Loss During his lifetime, the Veteran claimed that he had bilateral hearing loss that was due to his in-service noise exposure. The Veteran was recognized by the RO in its March 2014 rating decision to have been exposed to at least moderate in-service noise exposure during his tour in Vietnam. The question is whether he had a bilateral hearing loss disability during his lifetime that was causally connected to that in-service noise exposure. In March 2014 a VA examiner reviewed the record and provided an opinion. The examiner found that it could not be determined without resorting to speculation whether or not the Veteran's bilateral hearing loss was caused or exacerbated by his military service and conceded in-service noise exposure. The rationale did recognize the exposure to loud noise in service, but the examiner indicated, "Given the relatively short duration of the exposure, it is likely that the [V]eteran did not suffer any permanent hearing loss during service but this can not be verified as the [V]eteran did not have an exit PE and there are no audiograms available in the years shortly after service." No further explanation was provided. The examiner did not explain why it was determined that the Veteran had a "relatively short duration" of exposure to noise in service. Further, in January 2014, prior to this examiner's review of the file, the appellant provided a statement indicating she met the Veteran in 1972, within five years of his service, and he already had hearing loss at the time. She indicated his hearing was so bad by that time that he had to cup his hands around his ears to attempt to hear people. She also recalled the Veteran having failed his hearing test at his first job after service, which suggests some hearing loss existed prior to his post-service employment. This statement was not considered by the March 2014 examiner. The appellant again recalled the level of hearing loss the Veteran had at the age of 25, including needing to cup his hands around his ears to hear, at the time of her July 2021 Board hearing. The Board finds a remand is needed in order to obtain an opinion that contemplates the appellant's January 2014 statement and her July 2021 testimony. 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 was at least as likely as not related to his conceded in-service noise exposure. This opinion should consider the appellant's January 2014 statement indicating the Veteran had hearing loss when she met him in 1972, that the Veteran had failed his hearing test at his first post-service job, as well as the appellant's July 2021 hearing testimony indicating the Veteran had hearing loss by the age of 25. The addendum report should include reasons for any opinion expressed. If the clinician providing this opinion also indicates that the Veteran had a "relatively short duration" of noise exposure in service as the basis for the opinion (as was noted in the March 2014 opinion), then an explanation of the basis for that statement should be provided. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the appellant's claim should be readjudicated based on the entirety of the evidence. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.