Citation Nr: A21020214 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191125-49305 DATE: December 17, 2021 ORDER Entitlement to service connection for a bladder tumor is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bladder tumor is related to in-service exposure to an herbicide agent on a direct basis. 2. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss had its onset during service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a bladder tumor have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for bilateral hearing loss, and bladder tumor removal. On August 23, 2017, the President signed into law the Appeals Modernization Act (AMA). This law creates a framework for Veterans dissatisfied with VA's decision on their claim to seek review. In November 2019, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) requesting a Hearing Review, indicating he would submit additional evidence he wished considered in support of his appeal within 90 days after his hearing. 38 C.F.R. §§ 20.202(b)(2); 20.303. This decision has been written consistent with this AMA framework. Additional evidence was received on November 25, 2019, December 13, 2019, and August 5, 2021 after issuance of the rating decision on appeal but prior to the Board hearing. In cases such as this one in which hearing review by the Board was selected, the evidentiary record before the Board is limited to the evidence of record at the time of the agency of original jurisdiction's (AOJ's) decision on the issue or issues on appeal, and 90 days after the hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302. Consequently, the Board cannot consider this evidence. On August 26, 2021, the Veteran appeared at a virtual Board hearing before a Veterans Law Judge (VLJ). A copy of the transcript is of record. Under the AMA, the VLJ who held the hearing is not required to issue the decision on the claims discussed at the hearing. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). To qualify for entitlement to service connection on a presumptive basis under 38 C.F.R. § 3.307, the disability must generally become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(i). 1. Bladder Tumor The RO's favorable findings, by which the Board is bound, include that the Veteran has been diagnosed with a disability, as he underwent a transurethral biopsy of the urinary bladder. The Veteran testified that he was in Udorn Thailand where they sprayed Agent Orange, and that he feels that this exposure caused his physical problems. He reported that he was "probably less than 200 yards" away from the runway where F4s were constantly coming in and out, and did some communications. He stated that the flight line where he worked was close to the perimeter of the base. The Veteran reported that his understanding was that his bladder tumor was malignant. The Veteran also testified that he got orders to deploy to Vietnam, and that four months after his son was born, he went on October 17, but did not provide a year. In an August 2019 statement, the Veteran reported that he was deployed to Udorn Royal Thai Air Force Base during Vietnam War, and stayed 18 days in Tan Son Nhut Air Base where he was exposed to Agent Orange and other herbicides. The Veteran's DD-214 indicates that the Veteran is a recipient of the Republic of Vietnam Campaign Medal and Vietnam Service Medal, with a military occupational specialty as a gun specialist. The Veteran's military personnel records indicate that the Veteran served in Thailand from October 1967 to October 1968. The Veteran's October 1968 medical examination report upon separation from service is normal with the exception of enucleated tonsils. A July 2019 surgical pathology report reflects that there was no malignancy identified in the Veteran's urinary bladder. An August 2019 private medical record indicates that the Veteran was diagnosed with a bladder neoplasm of uncertain behaviour, and bladder diverticulum. August 2019 VA treatment records reflect that the Veteran reported having a benign bladder tumor removed. In a September 2021 letter, the Veteran's private physician noted that the Veteran underwent a resection of a benign bladder tumor in July 2019, and opined that it is possible that his resected bladder tumor is related to his prior Agent Orange exposure as there are no other risk factors that might have precipitated his current condition. As previously noted, the current disability criteria for service connection have been met, and the threshold issues are whether the Veteran had in-service herbicide agent exposure, and whether his current disability is related to this in-service herbicide agent exposure. The Veteran provided competent evidence of service in Thailand which included lay statements indicating service in Thailand, and stated that his duties as a gun specialist brought him close to the perimeter of the base, exposing him to herbicide agents. The Veteran is competent to recall his military activities and whereabouts. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). Additionally, the Veteran's military personnel records reflect service in Thailand. The specific circumstances of service must be considered, as demonstrated by service records and other evidence. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (VA must give due consideration to pertinent lay evidence). "VA Compensation Service has acknowledged that there is 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.'" Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). The Court in Parseeya-Picchione, 28 Vet. App. at 176 also held that the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. There is no indication that the Veteran lacked credibility, thus his lay statements of service around the perimeter of the base are afforded significant probative weight. While the Board finds that the Veteran was exposed to an herbicide agent during service, service connection on a presumptive basis is not warranted. The Veteran has a diagnosis of benign bladder tumor which was removed. While the Veteran testified that it "was his understanding" that the tumor was malignant, his assertion is outweighed by the medical records, including the September 2021 private physician's letter, which indicate that the Veteran's bladder tumor was benign, as there is no evidence in the record which suggests that the Veteran has the education, experience, or training to competently make a medical diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the Veteran's benign bladder tumor is not among the diseases listed under 38 C.F.R. § 3.309 (e), service connection on a presumptive basis is not warranted. Although the Veteran has not established entitlement to service connection on a presumptive basis, he is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). To this end, the evidence is at least evenly balanced as to whether the Veteran's bladder neoplasm is related to service. The Veteran's private physician opined that it is possible that the resected bladder tumor is related to his now established Agent Orange exposure. While the private physician's rationale was not extensive, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his bladder tumor. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Additionally, while the private physician's opinion may not by itself establish a basis for service connection due to the use of term "possible", it nonetheless constitutes evidence in support of the claim, and taken together with the Veteran's statements, is entitled to at least some probative weight. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service); Monzingo, 26 Vet. App. at 107 ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains"). There is no negative nexus opinion of record as to the etiology of the Veteran's bladder tumor. The Board notes that AMA remands are limited under 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a) for pre-decisional duty to assist errors and any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. Here, any such error would be non-prejudicial as the Veteran's claim is being granted in full. Additionally, a remand for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is thus at least evenly balanced as to whether the Veteran's bladder tumor is related to his in-service exposure to Agent Orange on a direct basis. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a bladder tumor is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 2. Bilateral Hearing Loss A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The RO's favorable findings, by which the Board is bound, include that the Veteran has been diagnosed with a hearing loss disability, and that he was exposed to hazardous noise in service, thus the first 2 criteria for establishing service connection have been met. The Veteran testified that he was experiencing symptoms of hearing loss when he was discharged from service, but stated that he let the symptoms slide due to his pride. He stated that his wife has told him for 55 years that he had a hearing problem. The Veteran's service treatment records do not reflect treatment for, or complaints of hearing loss, and his October 1968 medical examination report upon discharge is normal in regards to his ears and hearing. In an August 2019 statement, the Veteran reported that he was exposed to loud noises while serving in the Air Force during the Vietnam War. He stated that he rarely had immediate access to hearing protection and was exposed to noise levels in excess of 130 dB from daily flight line operations. He also stated that his living quarters were 3 levels directly below the main aircraft launching mechanism constantly exposing him to noise pollution. The Veteran reported that he now has difficulty hearing, having to ask people to repeat themselves, and has to turn up the volume on devices beyond normal levels. In an October 2019 disability benefits questionnaire (DBQ), pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 40 50 65 LEFT 25 25 40 55 70 Speech audiometry revealed speech recognition ability of 86 percent in the right ear, and of 80 percent in the left ear. The audiologist opined that the Veteran's bilateral hearing loss was not at least as likely as not (at least a 50 percent probability) caused by, or a result of an event in military service, stating that the Veteran's October 1968 separation examination revealed hearing within normal limits from 500 to 6000 Hz in the right ear, and from 500 to 4000 Hz in the left ear. The audiologist stated that the audiogram is the objective standard for noise injury, and because the Veteran's hearing was well within normal limits at separation, there is no evidence military noise exposure caused a permanent hearing loss. The audiologist noted that the Veteran's hearing loss did not exist prior to service, but did impact ordinary conditions of daily life including his ability to work, stating that his family noticed his trouble hearing. The Veteran reported gradual onset 5 to 8 years prior, stating that he hears better in his right ear. In a September 2021 letter, the Veteran's wife stated that after the Veteran returned home from service in 1968, he would have to ask people to repeat themselves, and she believes he struggled with hearing loss at that time. He also would have to turn up the volume on the television to a high volume in order to hear it. She reported that she believes his hearing was damaged during service, and has worsened over the years since service. While the October 2019 audiologist opined that the Veteran's bilateral hearing loss was not at least as likely as not related to military service, she based her opinion on her finding that there was normal hearing upon discharge. However, this opinion is flawed as normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Board thus finds the opinion inadequate, and affords it no probative value. The Veteran has provided competent and credible statements with respect to his hearing loss disability. He has stated that he has suffered from hearing loss since shortly after discharge from service, and his wife also reported that the Veteran's hearing had become an issue since his return home from service. Both the Veteran and his wife are competent and credible to describe the continuity of symptomatology for his hearing loss as it existed from his time of discharge from service, and the progressive worsening of symptoms through the years. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). While the evidence as reported by the Veteran and his spouse reflects hearing loss shortly after discharge from service, it is reasonable to conclude that the hearing loss initially occurred during service, but was not acknowledged by the Veteran until his wife informed him of its severity upon his return home after service. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c); Andrews, 34 Vet. App. at 225. The evidence is, thus, at least evenly balanced as to whether the Veteran's current bilateral hearing loss disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.