Citation Nr: 21064654 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-53 038A DATE: October 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for lung cancer, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus is related to service. 2. The Veteran is presumed to have been exposed to herbicide agents during service. 3. In the November 2015 Disability Benefit Questionnaire, Dr. T reported that the Veteran had ischemic heart disease. 4. The weight of the competent and credible evidence shows that the Veteran's lung cancer was caused by post service renal cell carcinoma, and renal cell carcinoma is not otherwise related to his service, to include presumed herbicide exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for ischemic heart disease have been met on a presumptive basis. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1961 to July 1965. This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2016 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The July 2016 rating decision, in pertinent part, denied service connection for ischemic heart disease and malignant neoplasm of the respiratory system, claimed as lung cancer. The October 2016 rating decision awarded service connection for hearing loss with an initial noncompensable rating and denied service connection for tinnitus. The Veteran timely appealed these rating decisions. In August 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran, nor the representative have asserted a specific notification or assistance error for the lung cancer claim. The Veteran had a July 2017 VA respiratory conditions examination with a physician. Reading this examination report in its entirety and in context with the entire record, it is clear that the physician found that the Veteran's lung cancer originated from the kidney and was not a primary cancer site. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The physician's reasons are sufficient to decide the claim as indicated below. Id. Thus, appellate adjudication of this claim may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that his claimed heart disease and lung cancer disabilities are related to herbicide agent exposure. His DD 214 shows that he served in the Navy from August 1961 to July 1965 and his last duty assignment was aboard the USS Mount McKinley (AGC-7). A veteran who 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 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); 38 C.F.R. § 3.307(a)(6)(iii). The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), that "Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to § 1116's presumption if they meet the section's other requirements. They are"). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 ("The BWN Act codified the Procopio holding"). Moreover, Congress also intended the BWN Act to "ensure that VA defines 'the Republic of Vietnam' broadly." Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). The USS Mount McKinley is reported to have visited Da Nang Harbor from March to May 1965. (See "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" July 1, 2019 Veterans Benefits Administration). Herbicide agent exposure is conceded. Id. Certain diseases, including ischemic heart disease and lung cancer, are on the list of those presumed service-connected in Veterans exposed to herbicide agents. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). However, this presumption of service connection is rebuttable by affirmative evidence to the contrary, such as a medical opinion based upon sound medical reasoning that identifies a post service injury or disease as causing the disease at issue. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tinnitus Service department records show that the Veteran served in the Navy as an electronic technician. Service treatment records (STRs) do not show any complaint or treatment for tinnitus type symptoms. December 2015 VA audiology clinic records noted the Veteran's reports about hearing problems dating back to the time of his naval service. He affirmed a history for tinnitus. An audiogram was taken and reflected bilateral hearing loss. In September 2016, the Veteran had a VA audiology examination with an audiologist. She reported that the Veteran did not have recurrent tinnitus and did not complete the tinnitus portion of the audiology examination. In his December 2018 substantive appeal, the Veteran reported that he was subject to acoustic trauma while working aboard the USS McKinley. At the August 2021 hearing, the Veteran described his history of noise exposure in service. He stated that he first noticed tinnitus in service, but he had never sought treatment for it. He also reported working as a police officer following service but had hearing protection during live fire exercises. For the following reasons, service connection for tinnitus is warranted. The disputed issue is whether there is a relationship between in-service noise exposure and current tinnitus. The Veteran is competent to report about hearing loss and tinnitus symptoms and their history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He asserts that he developed tinnitus symptoms from military noise exposures. He reported that he first noticed tinnitus symptoms in service but did not seek treatment. His reports are corroborated by December 2015 VA audiology clinic records. It is unclear why the September 2016 VA audiologist did not complete the tinnitus portion of the examination. Her report about no current tinnitus symptoms conflicts with the additional evidence. With consideration to the entire record, the Board finds the Veteran's lay reports probative to show tinnitus symptoms starting in service. There is no medical opinion of record. The Board could remand the claim for a medical opinion, but a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the Board finds that a relationship to service for tinnitus is in a state of relative equipoise. Buchanan v. Nicholson, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ischemic heart disease STRs do not show any complaint or treatment for chest pain or similar cardiac symptoms. In November 2015, the Veteran filed the instant service connection claim. He attached an Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) completed by Dr. T. Dr. T reported that the Veteran had ischemic heart disease. He referenced June 2015 electrocardiogram (EKG) and May 2015 echocardiogram. In July 2017, the Veteran had a VA heart conditions examination with a physician. The physician diagnosed atrial fibrillation with a 2012 onset. He cited a 2012 hospitalization for atrial fibrillation and current complaints about intermittent palpitations and dyspnea with exertion. He characterized the Veteran as having arrhythmia. Cardiac physical findings were detailed. He appears to comment that the Left Ventricular Ejection Fraction (LVEF) of 55 percent was due solely to cardiovascular manifestations. He stated that the Veteran did not have evidence of an ischemic heart disease condition and atrial fibrillation is less likely an ischemic heart disease condition. For the following reasons, service connection for ischemic heart disease due to herbicide agent exposure is warranted. The current disability may be met with evidence at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). In this case, any medical report reflecting an ischemic heart disease diagnosis during the claim period would satisfy this requirement. The Veteran filed his claim in November 2015 and attached the DBQ from Dr. T confirming this diagnosis. Although the July 2017 VA physician determined ischemic heart disease was not shown, he does not directly address Dr. T's report. There is conflicting medical evidence as to whether the Veteran has had ischemic heart disease during the claim period. The July 2017 VA physician did not address Dr. T's report or provide a specific rationale. Thus, the Board is unable to assign it more probative value than Dr. T's November 2015 DBQ report. This background reflects a reasonable doubt as to whether the Veteran has met the current ischemic heart disease disability requirement. This reasonable doubt must be resolved in the Veteran's favor. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). As the Veteran has ischemic heart disease, which is presumed service connected in veterans exposed to herbicide agents, and the Veteran is presumed to have been exposed to herbicide agents based on his service, entitlement to service connection for ischemic heart disease is warranted on a presumptive basis. Lung cancer STRs do not show any complaint or treatment for chronic cough, respiratory distress among other similar symptom that could possibly be associated with lung cancer, nor do they show any kidney disorder or disease. The Veteran's July 1965 physical examination showed that the Veteran's lung and chest as well as genitourinary systems were clinically evaluated and deemed normal. Urinalysis and chest X-rays returned normal. A contemporaneous Report of Medical History is not of record. July 2012 computerized tomography (CT) chest scan noted that the Veteran had a history of renal cell carcinoma. It reported fibrotic changes with probable small area of rounded atelectasis, unchanged. Scatter areas of pleural thickening in the upper portion of the left lung were also unchanged. Normal airway without effusions or mass was reported. For mediastinum and hila, no enlarged mediastinal or hilar lymph nodes. The physician listed an impression of fibrotic changes in the left lung, particularly in the left lung base, which is somewhat nodular and probably represents at least some degree of rounded atelectasis. It was stable. November 2015 VA primary care records showed that the Veteran was followed by an oncologist, Dr. A. His medical history included left lung cancer and the computerized problem list included malignant tumor of the lung as an active problem. Physical examination showed clear respiration. The clinician reviewed private laboratory results. He assessed the Veteran as clinically stable. In December 2015, Dr. A, who was identified as the Veteran's treating oncologist in November 2015 VA treatment records, completed a Respiratory Conditions DBQ for the Veteran. He characterized the Veteran's respiratory condition as diagnosed benign or malignant neoplasm or metastases of respiratory system with a February 2002 onset. He reported the pertinent medical history as metastatic renal cell cancer to the bilateral pleura of the lung with malignant pleural effusions. He elaborated that in February 2002 the Veteran had metastatic malignant pleural disease requiring surgery and chest tube placement. Metastatic renal cell cancer to bilateral pleura was responsible for this episode of respiratory failure. The Veteran was currently monitored for this condition by watchful waiting. Dr. A reported that an October 2014 CT scan indicated that the lung disease was stable. In July 2017, the Veteran had a VA respiratory conditions examination with a physician. The physician reported that the Veteran was diagnosed with metastatic renal cell cancer to pleura in 2002. He stated that the Veteran developed dyspnea. He was clinically evaluated, and imaging studies showed pleural effusion. He then underwent surgery with chest tube placement and was diagnosed with metastatic renal cell cancer with metates to bilateral pleura. He denied receiving any further treatment for cancer. Current imaging did not show evidence of active disease. Clinical findings were reported in detail. The physician summarized that the Veteran had a metastatic renal cell cancer with metastasis to the pleura. The renal cell cancer originated in the kidney, and it was not a disease presumptively related to herbicide agent exposure. At the August 2021 Board hearing, the representative noted the November 2015 respiratory conditions DBQ. For the following reasons, service connection for lung cancer, to include on a presumptive basis as related to herbicide agent exposure, is not warranted. The dispositive issue is whether the Veteran's lung cancer is a primary cancer or a cancer that metastasized from his kidney, also referred to as renal cell carcinoma. The laws and regulations provide that the presumption of service connection based upon herbicide agent exposure is rebuttable in cases where an intercurrent cause is shown to have cause the disease that would otherwise be presumptively related to service. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). There is no medical evidence indicating that lung cancer is a primary cancer, instead of a cancer that metastasized from the kidney. The Veteran implicitly asserts that his lung cancer is a primary cancer rather than a secondary cancer related to kidney cancer. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has specifically found, however, that cancer is the type of disability as to which a lay witness cannot offer competent testimony. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Here, the issue is whether lung cancer is a primary or a secondary cancer caused by kidney cancer. This issue is a medical question as to which the Veteran has not been shown to have the requisite medical expertise to provide competent testimony. Id. The Veteran's assertions that his lung cancer is a primary cancer or is otherwise not caused by kidney cancer are not competent. The medical evidence indicates that the Veteran's lung cancer is a secondary site cancer that metastasized from the kidney, also referred to as renal cell cancer. (See November 2015 Respiratory Conditions DBQ; July 2017 VA Respiratory Conditions examination report). Kidney cancer is not a disease presumptively related to herbicide agent exposure. 38 C.F.R. § 3.309(e). The November 2015 Respiratory Conditions DBQ and July 2017 VA Respiratory examination report were completed by physicians based upon a review of the record. They do not identify a lung cancer as a primary site cancer. The Board finds the November 2015 Respiratory Conditions DBQ and July 2017 VA Respiratory examination report to be highly probative evidence showing kidney cancer as an incurrent cause for lung cancer and thus, rebutting the service incurrence presumption for lung cancer as an herbicide related disease. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (Board may properly assign greater probative value to medical professional's opinion); 38 C.F.R. § 3.307(d), 3.309(e). There is no conflicting medical opinion, nor any medical evidence otherwise linking the Veteran's kidney cancer to service, to include presumed herbicide agent exposure. This theory of entitlement does not merit further consideration. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). For the foregoing reasons, the weight of the evidence reflects that the lung cancer resulted from an incurrent cause following service, and the presumption of service connection in Veterans presumed to have been exposed to herbicides is not applicable. Moreover, there is no evidence indicating that the kidney cancer was otherwise related to his military service, to include his presumed exposure to herbicides. The Board is sympathic to the Veteran's contentions and must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103(a), but is, however, bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Application of those laws and regulations to the facts of this case reflect that the preponderance of the evidence is against the claim for service connection for lung cancer. In this regard, "Presumptive service connection may not be established under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a) for a cancer listed in 38 C.F.R. § 3.309(e) as being associated with herbicide exposure, if the cancer developed as the result of metastasis of a cancer which is not associated with herbicide exposure." VAOGCPREC 18-97 (May 2, 1997); see Darby v. Brown, 10 Vet. App. 243, 246 (1997) (holding that the presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site of the cancer, which metastasized to the lungs). The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. Additional development is needed for this claim. The last VA audiology examination took place in September 2016. At the hearing, the representative requested a new audiology examination since the Veteran's hearing acuity may have worsened since then. The representative also noted a private audiogram, and that the accompanying speech discrimination testing standard was uncertain. The evidence includes a December 7, 2015 VA audiology clinic report about a contemporaneous audiogram confirming bilateral hearing loss. There is a separate audiogram labeled from December 7, 2015 that appears to be the audiogram referenced at the contemporaneous VA audiology clinic visit. It is unclear which speech recognition standard was used for the December 7, 2015 audiology test. Given the above background, an updated VA audiology examination and clarification of the word recognition standard used during December 7, 2015 VA audiology clinic testing is needed as instructed below. 38 C.F.R. §§ 3.159(c), 4.85(a). This matter is REMANDED for the following action: 1. Contact the East Orange VA Medical Center (VAMC) and request identification of the speech discrimination test from the December 7, 2015 VA audiology clinic records. Document all correspondence. 2. Schedule the Veteran for a VA audiology examination to determine the severity of his service-connected bilateral hearing loss. The Veteran's VA claims folder and copy of the remand must be made available to the audiologist for review in conjunction with the examination. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.