Citation Nr: 21074966 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-14 978 DATE: December 16, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED Service connection for kidney cancer is remanded. Service connection for prostate cancer is remanded. Service connection for bladder cancer is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran has bilateral hearing loss that is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1966 to February 1970. This matter is before the Board of Veterans' Appeal (Board) on appeal from rating decisions issued in March 2016 and May 2017 by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is in the Veteran's file. 1. Service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran is seeking service connection for bilateral hearing loss. For the reasons that follow, his claim shall be granted. First, both VA and private treatment records clearly demonstrate that the Veteran has been diagnosed as suffering from bilateral hearing loss for VA purposes. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran's service treatment records revealed that the Veteran had normal hearing at discharge from military service. However, the Veteran contends that he was exposed to hazardous noise during target practice with .45-caliber pistol. The Board notes that the Veteran is competent to give evidence about what he experienced, and exposure to noise is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran's active-duty service. Therefore, the Veteran was exposed to loud noise during service, and the in-service incurrence criterion is met. The July 2016 private medical opinion, authored by Dr. T. Tesmer, M.D., opined that the Veteran's exposure to loud noise is likely the source of his current bilateral hearing loss. The private examiner stressed that the effect of the Veteran's in-service target practice without ear protection contributed to his current hearing loss. Though there are other, negative opinions of record, no recitation or discussion of these opinions is necessary, as the evidence is, at the least, in equipoise. Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current bilateral hearing loss is related to his active service. Service connection for left ear hearing loss is therefore warranted. REASONS FOR REMAND 1. Service connection for kidney cancer is remanded. 2. Service connection for prostate cancer is remanded. 3. Service connection for bladder cancer is remanded. The Veteran is seeking service connection for cancer of the kidney, prostate, and bladder. The Veteran contends that his claimed disabilities are related to his active service. Specifically, the Veteran contends that his kidney, prostate, and bladder cancers may be due to environmental exposures related to his active service. He also asserts that he guarded perimeter towers of weapons' bunkers that may have stored nuclear weapons, and/or that he was exposed to hazardous chemicals while performing general vehicle maintenance. Review of the record indicates that the Veteran did not serve in Vietnam during the presumptive period to qualify for the presumption of herbicide exposure. Moreover, there is no presumption of contamination for equipment used in Vietnam or the storage of Agent Orange in particular location. As such, the Board finds that exposure to herbicide agents in the Veteran's case cannot be conceded. Furthermore, the Veteran has submitted a private opinion from Dr. L. A. Wiebusch. See November 2021 Private Medical Opinion. Dr. Wiebusch states that the Veteran's was exposed to multiple carcinogens and myriad of other undetermined environmental hazards, potentially Benzene, that contributed to his liver, bladder, and prostate cancers. The problem here, though, is that the particular chemicals to which the Veteran may have been exposed during his active service have not been identified with any real precision, or at least to the level to determine that it is at least as likely as not that the Veteran was exposed to such chemicals. Dr. Wiebusch identified that exposure to benzene could have led to the Veteran's current cancers, but the question of whether the Veteran was exposed to benzene (and how) remains outstanding. Under these circumstances, the Board finds that further research as to this question is warranted. The Veteran and his representative remain free to supplement the record with any particular and specific examples of his in-service exposure beyond the efforts required below coincident with VA's duty to assist. The matters are REMANDED for the following actions: 1. The AOJ should undertake all appropriate development action to verify the Veteran's alleged exposure to ionizing radiation from nuclear weapons. The Veteran contends that he performed guard duty on the perimeter of weapons' bunkers that may have stored nuclear weapons. If evidence is received that the Veteran had in-service nuclear radiation exposure, the AOJ should develop the appeal in accordance with the provisions of 38 C.F.R. § 3.311. The AOJ should conduct the appropriate development to determine the Veteran's level of exposure to radiation during active service. 2. Conduct any required and indicated research to attempt to determine the chemicals or toxins to which the Veteran could have been exposed during his active service. The AOJ is to contact any appropriate source within VA or the Department of Defense to determine based on the Veteran's military occupational specialty and his locations of service the possible chemicals or toxins to which he could have been exposed. All efforts to make this determination must be documented in the Veteran's claims file. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.