Citation Nr: 21068865 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-62 979 DATE: November 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for diabetes mellitus, type II (DMII), claimed as due to herbicide exposure, is denied. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is related to in-service noise exposure. 2. The Veteran did not serve in Vietnam or in the coastal waters of Vietnam; exposure to herbicides is not presumed. The evidence of record does not establish actual exposure to herbicides during service. 3. The Veteran's diabetes mellitus did not begin during active service, or is otherwise related to an in-service injury, event, or disease. 4. The Veteran's prostate cancer did not begin during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for diabetes mellitus, type II (DMII), claimed as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for prostate cancer, claimed as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from April 1964 to March 1966. This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In December 2020, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran's representative did not appear, but the Veteran elected to proceed in their absence after being fully informed of the elements of his claims, and with the assistance of the VLJ. Additionally, the Veteran's son testified and provided Spanish translation for his father, who speaks limited English. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is a listed condition, as an organic disease of the nervous system, with a presumptive condition of one year following separation from service. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Bilateral Hearing loss The Veteran contends that his bilateral hearing loss is related to his military service. Specifically, he contends that his hearing loss was related to his exposure to loud noises from weapons, warehouses, and a head trauma. Service treatment records (STRs) were silent for any diagnosis or complaints of hearing loss. The February 1966 separation examination had a "normal" clinical evaluation based on the whispered voice test. In August 2006, the Veteran was afforded a VA examination. The Veteran complained of hearing loss and vertigo for more than 30 years. He reported that he had difficulty hearing in group settings and hearing the television. He noted that he had frequent exposure to firing range and was exposed to heavy equipment during active service. He noted that he did not have an occupational or recreational noise exposure after service. In December 2020, he testified that he was exposed to loud noises while in-service, on the firing range. He stated that he began subjectively noting hearing problems immediately after returning to Puerto Rico from service. In August 2021, the Veteran was afforded a VA examination. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event military service. However, the examiner relied solely on the absence of documented hearing loss, and ignored the Veteran's consistent reports of subjective hearing loss since service. The opinion is therefore inadequate, and given no probative weight. The evidence of record therefore establishes noise exposure in service, the onset of hearing problems immediately after separation, and continuity of symptoms since that time. Testing objectively establishes a hearing loss disability for VA purposes; the sensorineural loss in a chronic condition. Finally, it is noted that service-connection for tinnitus is established; noise exposure has already been found severe enough to damage the ears. Based on the competent and credible lay evidence, and the factual evidence of acoustic trauma in service, entitlement to service connection for bilateral hearing loss is warranted. DMII and Prostate Cancer VA laws and regulations provide that if a Veteran was exposed to tactical herbicides during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § § 1116h(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide. 38 U.S.C. § § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which include type II diabetes mellitus and prostate cancer. The Veteran did not assert, nor did the evidence of record reflect, service in the Thailand or the Republic of Vietnam. Instead, he argues that he had "second hand" exposure through the men and equipment rotating through Okinawa from Vietnam. The Veteran cleaned equipment and dealt with personnel coming from areas herbicide was sprayed. He also indicated that he received and managed barrels in which he believed herbicides had been stored. In March 2021, the AOJ sent a notification letter to the Veteran. The letter asked the Veteran to send any information he had to further develop his claimed herbicide exposer. To date, the AOJ has not received either a response or additional pertinent medical evidence or medical records. The evidence, including official records, does not support his allegations, unfortunately. Service personnel records did not establish that he was exposed to herbicides through any known duties. In September 2017, the service department, through a PIES response, certified there were no records showing the Veteran was exposed to herbicides in the course of his duties. Further, while he may indeed have been in contact with men and material coming from Vietnam, it is not possible to determine the amount of exposure, or even if the equipment was contaminated. Cases in which such "second-hand" exposure is shown involve planes used to spray the defoliants, with intensive and long term exposure, which is not shown or alleged here. Even the report of handling barrels must be rejected. The Veteran may indeed have handled barrels, but there is no evidence beyond his personal belief that they contained herbicides. The Board acknowledges that the Veteran is competent to describe his duties and where he performed them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the Veteran's lay assertions of exposure are less credible and persuasive in light of the other evidence of record and are outweighed by this evidence. Since the evidence of record does not establish that the Veteran was exposed to herbicides while in-service, he is not entitled to any presumption that would result from such exposure. As there is no evidence to support any finding of a nexus between service and his DMII and prostate cancer. The Veteran may still seek service connection on a direct basis. The Veteran's STRs were negative for any treatment or complaints of DMII or prostate complications. The February 1966 separation examination had a normal clinical evaluation. The Veteran wrote that he was in well condition. Post service treatment records demonstrated that the Veteran was diagnosed and treated for DMII and prostate cancer. The Board acknowledges that the Veteran has not been provided with VA examinations pertaining to the claimed disorders. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained above, the Board finds that there is no indication that his DMII and prostate cancer are related to service, to include claimed in-service exposure to herbicides, as there was no such exposure. VA therefore has no duty to provide a medical examination. Current medical evidence shows that the Veteran was diagnosed with DMII and prostate cancer. However, the record did not suggest that his claimed conditions began during active service, or during any applicable presumptive period for chronic diseases. As there is no evidence to support any finding of a nexus between service and DMII and prostate cancer, service connection is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.