Citation Nr: 21075492 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-03 179 DATE: December 20, 2021 ORDER Service connection for prostate cancer is granted. Service connection for a left leg injury is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran's current prostate cancer manifested from an injury, specified as exposure to diesel and jet fuel, during a period of ACDUTRA in the National Guard. 2. The Veteran's current left shin pain with retained foreign body causing functional impairment manifested from an injury during a period of ACDUTRA in the National Guard. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for prostate cancer have been satisfied. 38 U.S.C. §§ 101, 1111, 5107; 38 C.F.R. §§ 3.1(d), 3.6, 3.304 (2020). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left leg injury have been satisfied. 38 U.S.C. §§ 101, 1111, 5107; 38 C.F.R. §§ 3.1(d), 3.6, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force Reserves from June 1973 to July 1973, on active duty in the United States Air Force from July 1973 to March 1975, and subsequently in the National Guard. In September 2019, the Board remanded the case for additional evidentiary development. The case has been returned to the Board for appellate review. Service Connection In general, every "veteran" shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A "veteran" is defined as a person "who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d)(4). Only service department records can establish if and when a person served on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The Veteran's service treatment records and service personnel records during his period of service in the National Guard are unavailable. A November 2015 response to a Personnel Information Exchange System (PIES) request for complete medical/dental records and entire personnel file at National Personnel Records Center (NPRC) revealed that all available requested records were shipped to the contracted scan vendor for upload into the electronic claims file. A February 2020 response to a PIES request for the Veteran's National Guard record revealed that all available service treatment records were previously uploaded into the electronic claims file. Subsequently, in a June 2020 notice letter, the agency of original jurisdiction (AOJ) informed the Veteran that no response was received from the NPRC and determined that the Veteran's service treatment records cannot be located and therefore are unavailable for review, all efforts to obtain the needed information have been exhausted, and further attempts to obtain the records would be futile. The Board recognizes that it has a heightened duty to explain its findings and conclusions because of the missing records during the Veteran's National Guard service and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In this case, the Veteran has been advised of the AOJ's unsuccessful efforts and was requested in the June 2020 notice letter to send any pertinent records he has in his possession; however, the Veteran has not provided such information. 1. Prostate cancer On August 1, 2015, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, in January 2016, he filed a VA Form 21-526EZ requesting service connection for prostate cancer due to exposure to diesel and jet fuel. In the December 2017 VA Form 9, the Veteran specified that he was a diesel and jet fueler in the National Guard from 1975 to 2000 and was exposed to the carcinogens in the fuel. Review of the evidentiary record demonstrates the Veteran has a post-service diagnosis of prostate cancer, as noted in the October 2020 VA Disability Benefits Questionnaire (DBQ) examination report for prostate cancer. Service personnel records during his period of active service from July 1973 to March 1975 shows the Veteran's list of military occupational specialty (MOS) included vehicle operator helper, vehicle operator dispatcher, transportation helper, air cargo specialist, and motor vehicle operator. The Veteran is competent to report that he was exposed to diesel and jet fuel during his service in the National Guard, and his reports appear consistent throughout the appeal period and with the circumstances of his MOS during active service which involved motor vehicle operations. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). As a result, the Board finds the Veteran's lay assertion regarding exposure to diesel and jet fuel during his service the National Guard is credible. Based on such findings, the Board finds that the Veteran had an injury, specified, as exposure to diesel and jet fuel on a facts found basis. In January 2018 the Veteran submitted a private medical opinion. Dr. D. S. reported treating the Veteran for adenocarcinoma of the prostate, he was informed by the Veteran of a history of bulk diesel fuel exposure during his military service, acknowledged there have been multiple studies linking increased exposure to diesel fuel and vapors to increased instances of prostate cancer, and concluded there is evidence linking the Veteran's potential exposure to an increase in prostate cancer. Review of the October 2020 VA DBQ medical opinion shows that after the in-person examination and review of the electronic VA claims file, the VA examiner explained why the Veteran's prostate cancer is at least as likely as not related to an in-service injury, event, or disease, to include exposure to diesel and jet fuel during active service and/or service in the National Guard. After a review of the pertinent and probative evidence of record, the Board resolves all reasonable doubt in the Veteran's favor and finds that his current prostate cancer manifested from an injury during a period of ACDUTRA while in the National Guard. The Board finds the October 2020 VA medical opinion was based on an accurate factual history and there is no probative contrary medical opinion of record. As such, service connection is warranted for prostate cancer. See 38 U.S.C. §§ 101, 1111, 5107; 38 C.F.R. §§ 3.1(d), 3.6, 3.304. 2. Left leg injury On August 1, 2015, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, in September 2015, he filed a VA Form 21-526EZ requesting service connection for foreign object embedded in bone and left leg causing extreme pain. Review of the evidentiary record demonstrates the Veteran has a post-service diagnosis of left shin pain with retained foreign body causing functional impairment, as noted in the October 2020 VA DBQ examination report for knee and lower leg conditions. The Board notes that pain alone in the absence of a diagnosed condition is capable of causing functional impairment, and functional impairment is considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran is competent to report a left leg injury during his service in the National Guard, and his reports appear consistent throughout the appeal period and with the circumstances of service in the National Guard. See Layno, 6 Vet. App. at 470. He explained in the January 2016 notice of disagreement (NOD) that he jumped into a fox hole during a training exercise and has experienced pain his shin making it difficult to walk. In the January 2017 VA Form 9, he explained that the left leg injury occurred during service summer camp in the National Guard while practicing night maneuvers. The Veteran also informed the October 2020 VA examiner that he fell in a fox hole during night patrol while in the National Guard. As a result, the Board finds the Veteran's lay assertion regarding a fall during training in the National Guard is credible. Based on such findings, the Board finds that the Veteran had an injury on a facts found basis. In September 2015 the Veteran submitted private treatment records dated in July 2015 that shows x-ray results of the left lower extremity revealed an embedded bullet fragment in the anterior mid shaft of the tibia. Review of the October 2020 VA DBQ medical opinion shows that after the in-person examination and review of the electronic VA claims file, the VA examiner explained why the Veteran's diagnosis of left shin pain with retained foreign body is at least as likely as not proximately due to or the result of an injury during the Veteran's National Guard service. After a review of the pertinent and probative evidence of record, the Board resolves all reasonable doubt in the Veteran's favor and finds that his current left leg shin pain with retained foreign body causing functional impairment manifested from an injury during a period of ACDUTRA while in the National Guard. There is no probative contrary medical opinion of record. As such, service connection is warranted for this condition. See 38 U.S.C. §§ 101, 1111, 5107; 38 C.F.R. §§ 3.1(d), 3.6, 3.304. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran was initially afforded a VA examination for hearing loss and tinnitus in January 2016. Pursuant to the September 2019 Board remand, the Veteran was afforded an additional VA examination and VA medical opinions for hearing loss and tinnitus in January 2021. Following the clinical evaluation and review of the claims file in January 2021, the VA examiner concluded the Veteran's current bilateral hearing loss for VA purposes and tinnitus disabilities are less likely than not due to exposure to military noise and more likely due to post-service occupational noise exposure. The rationale provided, in part, that there were no audiometric test results available between 1975 (date of the Veteran's separation from active service) to 2016 (date of the Veteran's initial VA examination for hearing loss and tinnitus). In contrast, review of the claims file shows that the Veteran's audiogram reports dated from 2001 to 2019 were obtained and associated with the claims file in December 2019. As a result, the Board finds that the January 2021 VA medical opinions regarding a nexus between bilateral hearing loss and tinnitus with in-service noise exposure were based on an incomplete factual history and addendum VA medical opinions are needed after a complete review of the claims file in order to properly adjudicate these issues on appeal on a direct basis. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the January 2021 VA examination for hearing loss and tinnitus and provided the January 2021 VA medical opinions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: Audiogram reports dated from 2001 to 2019 were obtained and associated with the claims file in December 2019. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss disability began during active service, is related to an incident of service (to include conceded in-service noise exposure),or began within one year after discharge from active service. (b.) Whether it is at least as likely as not that the Veteran's tinnitus began during active service, is related to an incident of service (to include conceded in-service noise exposure), or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.