Citation Nr: 21069001 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-33 819 DATE: November 17, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for prostate cancer to include as due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's MOS had a high probability of hazardous noise exposure. 2. The Veteran's has a current left ear hearing loss for VA purposes. 3. The Veteran's left ear hearing loss is related to active service. 4. The Veteran's tinnitus is related to active service. 5. The Veteran was diagnosed with prostate cancer in 2011. 6. In a January 2020 Memorandum, the Department of Veterans Affairs conceded exposure to herbicide agents based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 7. The Veteran's prostate cancer is presumed due to exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for prostate cancer to include as due to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116A, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1965 to May 1969. He is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. Service Connection 1. Entitlement to service connection for left ear hearing loss 2. Entitlement to service connection for tinnitus Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the purposes of applying the laws administered by VA, a disability due to impaired hearing may be considered if the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Left ear hearing loss The Veteran contends that his hearing loss is due to excessive noise exposure during active service, including combat service. The Veteran was afforded a VA examination in May 2014. Audiological testing showed the following results: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 25 20 16 LEFT 10 10 45 35 25 Speech discrimination scores (Maryland CNC Word List) were 96 percent right ear and 92 percent left ear. The examiner noted that the Veteran reported serving for four years in the Navy from 1965 to 1969, including service during the Vietnam War. The Veteran reported participating in combat activity. The examiner noted his duties during active service consisted of sheet metal worker. He did not use any hearing protection. The examiner opined that the Veteran's hearing loss was not as least as likely as not caused by or a result of an event in active service. The rationale was that the Veteran's discharge audiometric examination in his May 1969 indicated normal hearing thresholds bilaterally. The Veteran submitted a statement in November 2017 noting that the VA examiner found that the etiology of his tinnitus is at least as likely as not associated with his hearing loss. He stated that he has a very challenging time hearing a normal conversation. He requested additional development of his claim and a new audiological examination to evaluate the current level of his hearing loss. At the April 2021 hearing, the Veteran's representative observed that the May 2014 examiner noted a diagnosis of hearing loss and opined that the Veteran's tinnitus is at least as likely as not (50 percent or greater probability) a symptom associated with the hearing loss. The Veteran testified that during service he was a Shipfitter Third Class, which consisted of the repair division -- sheet metal fabrication, welding. He stated that he manned fog foam stations during the flag quarter. "Our shop was on hangar bay 3 right off of the fantail." He was exposed to the jet blasts as they were working. He reported working right across from an elevator that took planes to the "flight deck, and they would service the aircraft." He stated that "we were ship's company so we had no earmuffs or anything as the Airedales did." The Veteran testified that he experienced reduction in his hearing during service. He indicated that after being exposed he experienced reduction in his hearing, "it would come back but there was some deafening right after being exposed." This experience was recurring during service. He noted he did not have recreational or occupational noise exposure following service. After service, he repaired wrecked helicopters; that was sheet metal fabrication layout. Then, he did TIG welding for a company that built the interiors of aircraft. He also reported having jobs delivering propane. He retired from a manufacturing facility for sandpaper and was in management. He keeps the volume high on his television and tablet and misses phone calls because he doesn't hear it ring. While service treatment records do not contain complaints, treatment, or diagnosis, that is not fatal to the Veteran's claim. The laws and regulations do not strictly require in-service diagnosis of, or treatment for, hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When hearing loss is not shown in-service, acoustic trauma or military noise exposure may constitute injury of the ear. Evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and medical evidence sufficient to attribute that disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board finds that the May 2014 opinion relating to hearing loss is inadequate because the examiner did not provide a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When hearing loss is not shown in service, acoustic trauma or military noise exposure may constitute injury of the ear. Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds that the May 2014 VA examiner did not adequately address the Veteran's noise exposure during active service. A shipfitter has a high probability of hazardous noise exposure. The Veteran also served as a fireman which has a moderate probability of noise exposure. Importantly, the Board notes that the combat presumption under 38 U.S.C. § 1154(b) lowers the evidentiary burden for combat Veterans to show proof that they incurred their disability or injury in service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Board notes a that on December 10, 1966, the Veteran was authorized to wear the Navy Unit Commendation ribbon for service on board the USS Hancock "For exceptionally meritorious service from 6 December 1965 to 25 July 1966 while participating in combat operations in Southeast Asia in support of the Republic of Vietnam's efforts to resist communist aggression. During this period of intensive combat operations, HANCOCK aircraft were responsible for over 11,000 combat sorties and delivered over 7,000 tons of ordnance against enemy forces, repeatedly overcoming the most adverse weather conditions and intense enemy opposition to destroy major portions of North Vietnamese logistic lines of communication being utilized to support Viet Cong Forces within the Republic of Vietnam." The examiner's rationale does not adequately address all of the evidence in the context of the Veteran's hearing loss claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner failed to adequately take into account the Veteran's statements, the circumstances of the Veteran's service, including combat service, and his MOS with a high probability of noise exposure. The Board further notes that the examiner also failed to consider delayed onset hearing loss. The Director of the VA Compensation and Pension Service observed in Training Letter 10-02 that delayed-onset hearing loss and tinnitus must be considered in the service-connection analysis. The Board must weigh and assess the competence and credibility of all of the evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the May 2014 examiner's opinion is entitled to low probative weight. The Board places high probative weight on the Veteran's competent and credible testimony and statements which are consistent with the circumstances of the Veteran's service, his MOS, and his personnel records, and are sufficient to link his left ear hearing loss disability to service. The Board further notes that hearing loss is considered a chronic disorder under the applicable regulations, and the Veteran's credible statements of continuity of symptoms also support a nexus of this current disability to service. Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the combat presumption, the Veteran's current diagnosis of left ear hearing loss, the Veteran's MOS during service, and the Veteran's statements and testimony, the Board finds that the evidence is at least in relative equipoise and it is at least as likely as not that the Veteran's left ear hearing loss is proximately caused by in-service hazardous noise exposure. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus The Veteran was afforded a VA examination in May 2014. The Veteran reported recurrent tinnitus that began after he left active service. He noted it in quiet surroundings and at night. He stated that his tinnitus is constant and he just ries to ignore it. It impacts ordinary conditions of daily life including ability to work. The examiner noted that the Veteran's February 1965 enlistment audiometric examination indicated there was normal hearing bilaterally. His discharge audiometric examination in May 1969 indicated normal hearing thresholds. As to the etiology of the Veteran's tinnitus, the examiner found that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not a symptom associated with his hearing loss. The Veteran submitted a statement in November 2017 noting that the VA examiner found that the etiology of his tinnitus is at least as likely as not associated with his hearing loss. At the April 2021 hearing, the Veteran testified that the ringing in his ears progressively worsened since service, that it impacted his ability to hear during conversations, and that he could hear it in the background during the hearing. He stated that he hears ringing in his ears even when talking. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses that may be established through lay testimony. The Board notes that the Veteran's MOS had a high probability of hazardous noise exposure and his citation for combat service. The Board further notes that the May 2014 examiner found that the Veteran's tinnitus is related to his hearing loss, and in this decision the Board is granting service connection for the Veteran's left ear hearing loss based on acoustic trauma during service. The Board finds that the evidence of record is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to acoustic trauma during service. Therefore, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for his tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for prostate cancer to include as due to herbicide agent exposure VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, 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 during such service 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 C.F.R. § 3.307(a). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Service in the Republic of Vietnam includes service within the 12 nautical mile territorial sea of Vietnam. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Amyloidosis, chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemia (including, but not limited to hairy cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The Veteran asserts that he developed prostate cancer as a result of his active duty, to include in-service exposure to herbicide agents. The Veteran's file reflects diagnosis and treatment for prostate cancer in February 2011. The Veteran was afforded a VA examination in February 2020. The examiner noted a 2011 diagnosis of prostate cancer. The Veteran reported an elevated of PSA in 2011 with February 2, 2022 biopsy proven Gleason stage 6 prostate cancer. He was treated with radium seeding and is currently on brachytherapy and androgen deprivation therapy every three months, ongoing Lupron injections. The Veteran's service department records reflect that he served aboard the U.S.S. Hancock in the territorial waters off the coast of the Republic of Vietnam. In a memorandum dated January 10, 2020, VA conceded exposure to herbicide agents based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans act of 2019, Public Law 116-23. Thus, in-service herbicide exposure has been conceded. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). At the April 2021 Board hearing, the Veteran's representative noted that in January 2020, VA conceded exposure to herbicide agents under the Blue Water Navy Vietnam Veterans Act of 2019. The Veteran testified that he has been treated with surgical implants (radium seeding) in 2011 and is currently an outpatient, receiving a hormonal shot (Lupron injection) every three months. As the record reflects evidence that the Veteran had service in the territorial waters of the Republic of Vietnam, he is presumed to have been exposed to herbicide agents pursuant to the Blue Water Navy Vietnam Veterans Act of 2019. As he is presumed to have been exposed to herbicide agents, presumptive service connection for prostate cancer is warranted under 38 C.F.R. § 3.309(e). Accordingly, the claim for service connection for prostate cancer is granted. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran was afforded a VA examination in May 2014. As noted in the July 2014 rating decision denying service connection and at the April 2021 hearing, the Veteran did not have a right hearing loss for VA purposes at the time of the May 2014 examination. As there is no diagnosis of right ear hearing loss under VA standards, service connection cannot be granted for right ear hearing loss. In the absence of proof of a present disability, there can be no valid claim for veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, the Board finds that a contemporaneous examination is required to determine the current level of right ear hearing loss and remands for that purpose. The Veteran submitted a statement in November 2017 noting that the VA examiner found that the etiology of his tinnitus is at least as likely as not associated with his hearing loss. He stated that he has a very challenging time hearing a normal conversation. He requested additional development of his claim and a new audiological examination to evaluate the current level of his hearing loss. The Board notes that at the April 2021 hearing, the Veteran testified that during service he was a Shipfitter Third Class, which has a high probability of noise exposure and was exposed to the jet blasts as they were working. He also stated that he had no hearing protection. The Veteran testified that after being exposed to such noise, he experienced reduction in his hearing, "it would come back but there was some deafening right after being exposed." This experience was recurring during service. He indicated that he did not have any recreational or occupational noise exposure following service. Given the length of time since the 2014 examination and opinion, the Board finds that a remand is required to afford the Veteran a new examination and opinion to determine the current nature of his right ear hearing loss. The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for an examination with an appropriate clinician to determine the current nature of his right ear hearing loss. If the Veteran is diagnosed with hearing loss under VA standards, the examiner should provide a medical opinion addressing whether it is at least as likely as not that the Veteran's right ear hearing loss is related to his active service. The examiner must address the Veteran's MOS, combat service, lay statements, and hearing testimony in the process of reaching this opinion. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, Associate 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.