Citation Nr: 21071586 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-00 701 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is DENIED. Entitlement to service connection for hypertension is DENIED. Entitlement to service connection for diabetes mellitus is DENIED. Entitlement to service connection for cancer of the left ear is DENIED. Entitlement to service connection for prostate cancer is DENIED. Entitlement to service connection for herniated disc is DENIED. REMANDED Entitlement to service connection for residuals to burns to hands, to include Raynaud's disease, is REMANDED. Entitlement to service connection for a right knee disability, status post replacement, is REMANDED. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's currently assessed right ear hearing loss either began during, or was otherwise caused by, his military service. 2. The weight of the evidence is against a finding that the Veteran's currently assessed hypertension loss either began during, or was otherwise caused by, his military service. 3. The weight of the evidence is against a finding that the Veteran's currently assessed diabetes mellitus either began during, or was otherwise caused by, his military service. 4. The weight of the evidence is against a finding that the Veteran's assessed cancer of the left ear either began during, or was otherwise caused by, his military service. 5. The weight of the evidence is against a finding that the Veteran's assessed prostate cancer either began during, or was otherwise caused by, his military service. 6. The weight of the evidence is against a finding that the Veteran's assessed degenerative changes within the thoracic spine either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 3. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 4. The criteria for entitlement to service connection for cancer of the left ear have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 5. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). 6. The criteria for entitlement to service connection for herniated disc have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from March 1953 to March 1955. Service Connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for bilateral hearing loss is denied. In August 2014, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for service connection for a bilateral hearing loss disability. In addition to the above described VA regulations, entitlement to service connection for impaired hearing is subject to additional VA regulations. Specifically, a hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the "the threshold for normal hearing is from 0 to 20 dB (decibels), and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In March 1955, the Veteran underwent an examination at separation from the U.S. Army. At that time, the Veteran demonstrated bilateral 15/15 whispered voice (WV) values. The Board notes that no other hearing and/or audiometric values were supplied by the military examiner. Apparently, audiometric testing was not performed during the examination because the Veteran did not score below 15/15 on the WV test. In January 2016, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured hearing loss. The Veteran demonstrated the following audiometric values: HERTZ Jan 2016 500 1000 2000 3000 4000 RIGHT 5 10 55 50 50 LEFT 10 10 25 30 45 The Veteran demonstrated 96 percent right, and 100 percent left ear, speech discrimination. At that time, the Veteran denied significant military noise exposure. However, the Veteran did report playing the flute in the U.S. Army marching band (with the brass instruments behind him). The examiner noted that the Veteran's demonstrated right ear hearing was worse than the left, which was likely due to a stroke (in 2002). The examiner opined that any demonstrated hearing loss was less likely than not (less than 50 percent probability) caused by, or a result of, the Veteran's service in the U.S. Army. The examiner noted that it was over 60 years after / since the Veteran's separation from the U.S. military. In May 2016, a statement from the Veteran's son was associated with the claims file. Therein, the son relayed that the Veteran endured loud noises as a member of the marching band in the U.S. Army. The son relayed that he, and his mother and sisters, had to constantly repeat themselves when talking with the Veteran. The son also relayed that all of the Veteran's personally-maintained military records were destroyed in a 2010 house fire. In August 2016, a VA Form 21-4138 was associated with the claims file. Therein, the Veteran posited that he suffered hearing damage, while practicing and performing in the marching band, during military service. The Appellate record reflects that the Veteran postponed Board hearings in March, June, and September 2020 AND February and June 2021. The Veteran was scheduled for another Board hearing in October 2021, but he failed to appear. Consequently, the appellate record does not contain hearing testimony from the Veteran on the claim for service connection for a bilateral hearing loss disability. The Board observes that the Veteran has demonstrated right ear hearing loss for VA compensation purposes during the claim period. See 38 C.F.R. § 3.385. With regard to an in-service injury, the Board notes that the Department of Defense's Duty MOS Noise Exposure Listing indicates that an Army Band person has a "high probability" of hazardous noise exposure during service. In-service hazardous noise exposure is, therefore, consistent with the circumstances of the Veteran's duties in United States Army. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Veterans Benefits Administration Fast Letter No. 10-35 (September 2, 2010). Consequently, the Board concludes that the first and second requisite elements have been substantiated for the Veteran's claim for service connection for a right ear hearing loss disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. However, after deliberate review of the claims file, the Board finds that a competent medical provide and/or examiner has not identified a causal relationship (or nexus) between the Veteran's hazardous noise exposure in the marching band and the currently-endured right ear hearing loss. On the contrary, the examiner tht conducted the 2016, after consideration of the Veteran's reported inservice noise exposure and interviewing the Veteran regarding the history of his hearing loss, concluded that his hearing loss was not related to service. There is not contrary competent medical opinion of record. Consequently, the third requisite element for service connection has not been substantiated. See id. To the extent that the Veteran contends that his hearing loss is attributed to his inservice noise exposure, the Board notes that as a layperson he does not have the competency to render an opinion on a complex medical question such as the etiology of any currently manifested hearing loss disability. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a bilateral hearing loss disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a biliteral hearing loss disability must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to service connection for hypertension, diabetes mellitus, cancer of the left ear, prostate cancer, and herniated disc disabilities is denied. In August 2014, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated claims for service connection for hypertension, diabetes mellitus, cancer of the left ear, prostate cancer, and herniated disc disabilities. Again, generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. In March 1955, the Veteran underwent an examination at separation from the U.S. Army. At that time, the military examiner reported "normal" for all the Veteran's physical functions, to include ears, heart, vascular system, endocrine system, G-U system, upper and lower extremities, spine (other musculoskeletal), and lymphatics. The military examiner did report or note any defects and/or diagnoses. In March 2015, correspondence from the agency of the original jurisdiction (AOJ) was associated with the claims file. Therein, the AOJ relayed that the Veteran's military records were destroyed by a fire at the National Archives and Records Administration (NARA) in July 1973. In March 2015, a statement from the Veteran was associated with the claims file. Therein, the Veteran relayed that his personally maintained military records were destroyed by a fire at his residence in August 2010. In June 2015, a Report of General Information was associated with the claims file. Therein, the Veteran relayed that his personally maintained military records were destroyed during a fire at his residence in August 2010. In December 2015, correspondence from the AOJ was associated with the claims file. Therein, AOJ informed the Veteran that, because of the fire at NARA, his service treatment records (STRs) were unavailable for review. The AOJ notified the Veteran that he could submit copies of the STRs and other relevant evidence to support his claim(s), to include buddy statements. The Board notes that when "service medical records are presumed destroyed . . . the BVA's (Board's) obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Again, the appellate record reflects that the Veteran postponed Board hearings in March, June, and September 2020 AND February and June 2021. The Veteran was scheduled for another Board hearing in October 2021, but he failed to appear. Consequently, the appellate record does not contain hearing testimony from the Veteran on the claims for service connection for hypertension, diabetes mellitus, cancer of the left ear, prostate cancer, and herniated disc disabilities. In May 2016, the Veteran's non-government treatment records were associated with the claims file. After review, the Board observes that the records report diagnoses for hypertension, diabetes mellitus, left ear and prostate cancer, and degenerative changes within the thoracic spine. After review of the medical treatment records in the claims file, the Board finds that the Veteran has been assessed with hypertension, diabetes mellitus, left ear and prostate cancer, and thoracic spine disorders. Consequently, the first requisite element for service connection has been substantiated. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. However, the Board observes that during the Veteran's March 1955 U.S. Army discharge examination, the military examiner did not identify and/or diagnose any disabilities. Moreover, the examiner did not report any symptoms or signs that are associated with the Veteran's currently assessed disorders. The military examiner reported "normal" for all of the Veteran's body / physical systems. The Board observes that the Veteran's government-maintained STRs were reported as destroyed by fire in 1973. The Board also observes that the Veteran's personal military records were reported as destroyed by a residential fire in 2010. The Board notes that, in December 2015, AOJ informed the Veteran that he could submit copies of other relevant evidence to support his claims, to include buddy statements. The Board has deliberately reviewed the claims file, to include the statements provided by the Veteran and his son. After review, the Board finds that evidence does not support a conclusion that hypertension, diabetes mellitus, left ear and prostate cancer, and thoracic spine disorders were the result of an injury, event, or illness during the Veteran's service in the U.S. Army. Consequently, the second and third requisite elements for service connection have not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claims for service connection for hypertension, diabetes mellitus, cancer of the left ear, prostate cancer, and herniated disc disabilities. Since the preponderance of the evidence is against these claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claims for service connection for hypertension, diabetes mellitus, cancer of the left ear, prostate cancer, and herniated disc disabilities must be denied, because the preponderance of the evidence weighs against his claims. REASONS FOR REMAND The Board again notes that when "service medical records are presumed destroyed . . . the BVA's (Board's) obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare, 1 Vet. App. 365, 367 (1991). In light of this "heightened" duty, the Board concludes that further evidentiary development is necessary for the two remanded claims below. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 1. Entitlement to service connection for residuals to burns to hands, to include Raynaud's disease, is remanded. In August 2014, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for service connection for residuals to burns to hands, to include Raynaud's disease. In March 2015, a statement from the Veteran was associated with the claims file. Therein, the Veteran relayed that he burned the back of both his hands on pot-belly stove during guard duty in New Jersey. In June 2015, a Report of General Information was associated with the claims file. Therein, the Veteran relayed that he was seen on the at the military base hospital after he burned both hands in December 1954. In May 2016, the Veteran submitted a photograph, which was associated with the claims file. The photograph depicts a young male with bandaged left and right hands. The Board observes that the appellate record supports a finding that the Veteran incurred burns to both of his hands during service in the U.S. Army. However, to date, the Veteran has not undergone a VA examination that addresses whether the Veteran currently endures a hand condition that is etiologically related to the in-service burns to the hands. On remand, the AOJ should secure a VA examination report that addresses the Veteran's claim for service connection for the residuals to burns to the hands, to include Raynaud's disease. 2. Entitlement to service connection for a right knee disability, status post replacement, is remanded. In August 2014, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for service connection for a right knee disability, status post replacement. In March 2015, a statement from the Veteran was associated with the claims file. Therein, the Veteran relayed that he injured his right knee during Basic Training in early 1953. The Veteran relayed that he spent three days in the hospital, where blood was drained repeatedly from the right knee. In June 2015, a Report of General Information was associated with the claims file. Therein, the Veteran relayed that he injured his right knee during Basic Training, between March and May of 1953. In May 2016, a statement from the Veteran's son was associated with the claims file. Therein, it was reported that the Veteran's right knee caused him to fall down the stairs several times while the son was "growing up." In August 2016, a VA Form 21-4138 was associated with the claims file. Therein, the Veteran posited that his current right knee problems are the result of a Basic Training injury and military service. The Board observes that the appellate record supports a finding that the Veteran incurred a right knee injury during Basic Training for the U.S. Army. However, to date, the Veteran has not undergone a VA examination that addresses whether the Veteran currently endures a right knee disorder that is etiologically related to the injury during Basic Training. On remand, the AOJ should secure a VA examination report that addresses the Veteran's claim for service connection for a right knee disability, status post replacement. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured residuals to burns to the hands, to include Raynaud's disease. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should provide a response to the following inquiry: For any current residuals to burns to the hands identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran's U.S. Army service. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran's own history and contentions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured right knee disorder. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should provide a response to the following inquiry: For any current right knee disorder identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran's injury during Basic Training for the U.S. Army. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran's own history and contentions. 4. The AOJ must ensure that the examination reports requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims for service connection for bilateral hand and right knee disabilities. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.