Citation Nr: 21075227 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-13 819 DATE: December 17, 2021 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a bilateral hearing loss disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for prostate cancer is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. In an unappealed February 2008 rating decision, the Veteran was denied entitlement to service connection for a bilateral hearing loss disability and prostate cancer; the evidence received since the decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims. 2. A bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service. 3. The Veteran's air service included visitation to the Republic of Vietnam. 4. The Veteran has prostate cancer which is presumed to be related to his in-service exposure to herbicides. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for a bilateral hearing loss disability is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. New and material evidence has been received, and the claim of entitlement to service connection for prostate cancer is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 4. The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 1131, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from January 1962 to August 1966, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the VA Regional Office (RO). In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Claims to Reopen In a February 2008 rating decision, the RO denied entitlement to service connection for a bilateral hearing loss disability and prostate cancer. The Veteran did not appeal. The evidence that has been received since the February 2008 rating decision include a November 2011 VA audiological evaluation report, post-service VA and private medical records, and the Veteran's hearing testimony and lay statements. Specifically, the Veteran testified that he has continued to have bilateral hearing loss since service. Further, the Veteran reported that service payroll records support that he received combat pay for time served in the Republic of Vietnam. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disability and prostate cancer. Therefore, reopening of the claims is warranted. Service Connection 1. Bilateral Hearing Loss Disability The Veteran has contended that his bilateral hearing loss disability is related to his in-service noise exposure. VA has conceded that the Veteran sustained acoustic trauma while working on the flight line. Service treatment records (STRs) revealed bilateral hearing impairment in April 1964, September 1964, and October 1965. Audiometric test results showed that the Veteran had a right ear hearing loss disability in April 1964 and October 1965. Additionally, the April 1964 service examiner indicated that the Veteran had bilateral perceptive high frequency hearing loss. Upon separation, the Veteran's June 1966 audiometric test results were within normal limits. Nonetheless, the Veteran has reported that he first experienced symptoms associated with hearing loss while he was in active service and that those symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In May 2007 and November 2011, the Veteran was afforded VA audiological examinations. The examiner diagnosed a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Further, the examiner opined that the Veteran's bilateral hearing loss disability was less as likely as not due to acoustic trauma during service. In support of this opinion, the examiner noted that the Veteran's hearing loss was documented to be within normal limits at the time of his separation from service. The Board finds that the VA medical opinion is inadequate for adjudication purposes. Specifically, the examiner did not consider the Veteran's competent and credible statements regarding the in-service onset and continuity of his symptoms since service. Furthermore, the examiner did not address STR notations of bilateral hearing loss during service. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify reduced hearing acuity and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, VA has conceded acoustic trauma during the Veteran's active service. The Veteran had competently and credibly reported that he first experienced hearing loss while in active service and that he has continued to have symptoms since that time. While there is a VA medical opinion of record against the claim, that opinion is not adequate. Furthermore, the Veteran has a current diagnosis of bilateral hearing loss. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Prostate Cancer The Veteran has asserted that his prostate cancer is related to his active service. Specifically, he reported that he served a temporary duty assignment in the Republic of Vietnam (RVN) in 1965. He stated that he was exposed to herbicides when he worked in the freight yard in Qui Nhon and flew combat missions. A review of the Veteran's service personnel records (SPRs) confirm that the Veteran had foreign service in 1965. According to his July 1965 performance evaluation, the Veteran was temporarily assigned to "Operation Two Buck" in Southeast Asia. Although the RO was unable to verify the Veteran's visitation to the RVN or his exposure to herbicides, the Board finds that the Veteran's SPRs corroborate his presence in RVN. Additionally, the Board notes that the Veteran is competent to report what he experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds the Veteran to be credible in that respect. As such, the evidence is in relative equipoise and the Veteran's exposure to herbicides is conceded. (Continued on the next page) A review of post-service private medical records shows that the Veteran was diagnosed with prostate cancer, a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). Accordingly, entitlement to service connection for prostate cancer is warranted on a presumptive basis. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.