Citation Nr: 21007870 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-15 132 DATE: February 11, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. Entitlement to service connection, to include on a secondary basis, for erectile dysfunction, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for left ankle disability is remanded. Entitlement to service connection, to include on a secondary basis, for low back disability is remanded. FINDINGS OF FACT 1. After resolving the benefit of the doubt, the Veteran’s tinnitus originated in active service or within a year of service. 2. The probative evidence of record does not demonstrate the Veteran was exposed to herbicides during his military service. 3. The probative evidence of record does not demonstrate the Veteran’s prostate cancer is etiologically related to an in-service injury, event or disease, to include as due to herbicide exposure. 4. The probative evidence of record does not demonstrate the Veteran’s erectile dysfunction is etiologically related to an in-service injury, event or disease, to include as due to herbicide exposure, or is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to December 1972. He also had additional periods of United States Naval Reserve Service from December 1969 to January 1971 and from December 1972 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in September 2020. Preliminarily, the Board notes that the issue of service connection for the claimed low back disability is remanded, in part, to obtain pertinent treatment records not yet associated with the claims file. However, the aforementioned outstanding treatment records were referenced in the September 2020 Board hearing and have been specified as related to the Veteran’s low back disability. The Veteran has not reported nor does the evidence of record indicate that any such treatment records are pertinent to the prostate cancer and erectile dysfunction claims decided and denied herein. Instead, during the September 2020 Board hearing, the Veteran indicated that there have been no opinions submitted in support of the prostate cancer and erectile dysfunction claims and that he has only received treatment through VA medical centers. Also, the Board is granting the claim for service connection for tinnitus herein. As such, the Board may proceed with a decision as related to the service connection claims for tinnitus, prostate cancer, and erectile dysfunction without prejudice to the Veteran. Entitlement to service connection for tinnitus. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303. Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). The Veteran is competent to report continued intermittent tinnitus since his military service. The Veteran has explained that he was exposed to firing guns during his reserve military duty with little to no ear protection. The Veteran described that he experienced ringing in his ears following the firing of large guns. See March 2015 C&P Exam. The Veteran also reported that during active service, his military occupational specialty (MOS) was an electrician’s mate, where he was exposed to loud noise when he went down to the engine rooms with the generators and big engines running. He reported that when he came out of the engine room, his ears were ringing because of the loud noise exposure. He reported the ringing in his ears never went away. See September 2020 Hearing Transcript. A review of the Veteran’s DD 214 confirmed his active duty MOS as an electrician’s mate. See December 1972 Certificate of Release or Discharge From Active Duty. His MOS as an electrician’s mate was rated as moderately probable for hazardous noise exposure on the VA’s Duty Military Occupational Specialty (MOS) Noise Exposure Listing. This is consistent with the Veteran’s description of noise exposure during service and as such, military noise exposure is conceded. The February 2015 VA examiner found that the Veteran’s diagnosed tinnitus was less likely than not due to military noise exposure. See March 2015 C&P Exam. Nevertheless, the Board reiterates that the Veteran is competent to report that he has experienced ringing in his ears since active service. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is a type of disorder that is capable of lay observation). The Board has no reason to doubt his reports that his tinnitus had its onset during his military service. Therefore, the Board will resolve reasonable doubt and grant service connection for tinnitus. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. The Veteran seeks entitlement to service connection for prostate cancer. He contends that the condition is due to exposure to herbicide agents during active service. He asserts that in his MOS as an electrician’s mate, he handled equipment and cargo that was aboard USS Tuscaloosa immediately after the ship’s return from Vietnam. Although he reported that he was never in Vietnam and had not directly been exposed to herbicide exposure, he asserted that he was secondarily exposed to herbicide agents that was on the aforementioned equipment. He vaguely referenced studies that show such secondary exposure to herbicides resulted in conditions such as prostate cancer. See September 2020 Hearing Transcript. In support of the studies the Veteran mentioned during the September 2020 Board hearing, in a November 2020 statement, the Veteran, through his representative noted that VA had conceded to Reservists being exposed to residual amounts of Agent Orange from handling C-123 Agent Orange-contaminated aircrafts. The Veteran contended the same type of exposure from handling cargo from USS Tuscaloosa as it came from Vietnam. See November 2020 Statement in Support of Claim. Certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). In addition, an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Prostate cancer is included in the list of enumerated diseases. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The medical evidence of record confirms that the Veteran has a current diagnosis of prostate cancer status post robotic-assisted laparoscopic prostatectomy (RALP). See January 2015 CAPRI. However, the military personnel records do not show, and the Veteran specifically denied any military service in the Republic of Vietnam. The Board concludes that the claim must be denied because there is no probative evidence demonstrating that the Veteran served in the Republic of Vietnam; that exposure to herbicide agents may be presumed based on contact with cargo or equipment possibly exposed to herbicide; that the Veteran was actually exposed to herbicides during active service; or that the Veteran’s prostate cancer is otherwise medically attributable to his active service on any other basis. Specifically, as noted above, there is a rebuttable presumption of exposure to herbicides where a Veteran served in the Republic of Vietnam during the Vietnam Era or had certain types of residual herbicide exposure. In this case, the Veteran has not contended, and the record does not show, that he served in the Republic of Vietnam. The Veteran also has not contended that he performed service in the Air Force or Air Force Reserve and had the type of contact with C-123 aircraft described in 38 C.F.R. § 3.307(a)(6)(v). Instead, as noted above, the Veteran contends that his exposure to herbicide agents was due to handling equipment and cargo that was aboard USS Tuscaloosa immediately after the ship’s return from Vietnam, not that he actually had any contact with a C-123. The relevant statutes and regulations do not provide for presumption of exposure to herbicide agents based on contact with equipment other than C-123 aircraft. Therefore, secondary exposure based on being near or working on ships or equipment once used in Vietnam may not be presumed. In short, there is no basis in the present case for presuming exposure to herbicide agents. As such, the evidence must show that the Veteran was actually exposed to herbicide agents for service connection to be granted on a presumptive basis as due to exposure to herbicide agents. The Board has reviewed a May 2009 Memorandum for Record, from the Director of the JSRRC, which states that in the course of its research efforts, it reviewed numerous official military documents, ships’ histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam Era. Despite those efforts, the JSRRC reported that up to that time, it had found no evidence indicating that a Navy or Coast Guard ship had transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam had used, stored, tested, or transported tactical herbicides. Moreover, the JSRRC could not document or verify that a shipboard Veteran had been exposed to tactical herbicides bases on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Therefore, the JSRRC could provide no evidence to support a veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. See February 2015 VA Memo. The Board finds that any suggestion that the Veteran was exposed to Agent Orange by way of contact equipment that returned from Vietnam is far too speculative on its face to constitute credible evidence of exposure. The Veteran’s opinion that equipment he handled aboard USS Tuscaloosa likely had residual herbicides is not competent lay evidence because the record does not indicate that the Veteran has the type of education, training, or expertise necessary to identify chemical substances such as Agent Orange. The Board also notes that the Veteran has not specifically contended witnessing any such substances on the equipment or cargo he handled. Therefore, the Board assigns no probative value to his contentions. The positive nexus evidence of record is based upon the Veteran’s lay statements connecting his service to his condition. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training. Layno, 6 Vet. App. at 469-70. However, the Veteran has not shown that he possesses the expertise necessary to opine on the complex matter of identifying herbicide compounds or the etiology of his cancer. See id. (explaining that “[a]s a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration,” which includes possessing personal knowledge of the disputed fact and the expertise necessary to testify as to that fact); see also Barr, 21 Vet. App. at 307 (“Lay testimony is competent…to establish the presence of observable symptomatology.”). Thus, the Veteran’s statements regarding a nexus between service and his cancer are afforded no probative value. Finally, the Veteran’s service treatment records (STRs) are absent for evidence of in-service treatment for prostate cancer. In addition, there is no competent evidence of record linking the Veteran’s current prostate cancer to his active service. The Veteran also has not contended onset of prostate cancer during his military service. Instead, the Veteran reported during the September 2020 hearing, that he was first diagnosed with prostate cancer following raised PSA levels approximately 10 years prior. See September 2020 Hearing Transcript. A review of the post-service treatment records show that a December 2011 VA treatment record initially noted the Veteran’s elevated PSA. See March 2014 CAPRI. A July 2012 VA treatment record noted a February 2012 prostate biopsy that collected 9 of 12 cores and revealed that none of the cores had cancer. See id. It was not until a subsequent biopsy in May 2013 that revealed prostate cancer, over three decades after separation from active service. See id. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a disability, while not dispositive, are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); see also Maxson, 230 F.3d at 1333. Therefore, the record does not show that the Veteran’s prostate cancer had its onset during his active service or is otherwise etiologically related to his active service on a direct-incurrence basis. See Combee, 34 F.3d at 1043. In summary, there is no competent, probative evidence of record linking the Veteran’s current prostate cancer to his active service, to include the claimed exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for prostate cancer. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection, to include on a secondary basis, for erectile dysfunction. The Veteran seeks entitlement to service connection for erectile dysfunction. Specifically, he alleges that he developed erectile dysfunction due to exposure to herbicide agents or as secondary to his prostate cancer. See June 2015 NOD and September 2020 Hearing Transcript. A June 2014 VA treatment record reflects that the Veteran has an assessment of erectile dysfunction. See January 2015 CAPRI. Therefore, there is evidence of current disability. As to an in-service event, a review of the Veteran’s STRs does not reveal complaints of or treatment for erectile dysfunction nor has the Veteran contended onset of the disability during military service. Additionally, as discussed above there is no evidence that the Veteran was exposed to herbicide agents in service on a presumptive basis or otherwise by direct demonstration. In summary, the STRs do not reflect in-service complaints of erectile dysfunction. The earliest evidence of record of erectile dysfunction is in a May 2013 VA treatment record reflecting the Veteran has some erectile dysfunction. See March 2014 CAPRI. The May 2013 VA treatment record is over three decades after the Veteran separated from active service. Therefore, there is evidence of current erectile dysfunction, but there is no evidence of an in-service injury, illness or disease to which the current erectile dysfunction may be medically attributed. Rather, the evidence suggests that the Veteran did not have erectile dysfunction more than thirty years after his active military service. The Board has also considered whether the Veteran is entitled to service connection for erectile dysfunction as secondary to prostate cancer. Secondary service connection is warranted where a disability is proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Since the Veteran is not service-connected for prostate cancer, a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability alleged to have caused or aggravated the disability for which service connection is sought is service connected. Accordingly, the claim for entitlement to service connection for erectile dysfunction, as secondary to prostate cancer, is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In summary, the most probative evidence of record does not support a finding that that there is a causal relationship between the Veteran’s current erectile dysfunction and his active service, nor is the erectile dysfunction at issue proximately due to, or aggravated by a service-connected disability. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. This claim therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND Entitlement to service connection, to include on a secondary basis, for left ankle disability is remanded. The Veteran contends that his current left ankle disability is related to his service-connected right ankle disability. He reported that due to favoring his right ankle, he overcompensated, and he transferred his weight to his left foot, thus, causing his left ankle arthritis. See June 2015 NOD and September 2020 Hearing Transcript. The Veteran was provided a VA examination in February 2015 in which the examiner diagnosed left ankle degenerative arthritis and opined that it was less likely than not that the left ankle disability is due to or the result of the service-connected right ankle disability. See March 2015 C&P Exam. However, the Board notes that the examiner did not address the theory of secondary aggravation. Accordingly, a remand is necessary to obtain such an opinion. Entitlement to service connection, to include on a secondary basis, for low back disability is remanded. The Veteran also contended that his current low back disability is related to his service-connected right ankle disability. Similarly, he reported that due to favoring of his right ankle and overcompensating in his gait, it resulted in his low back pain. See June 2015 NOD and September 2020 Hearing Transcript. A remand is warranted to obtain a VA examination and medical opinion as to any etiological relationship between the Veteran’s current low back disability and his service-connected right ankle disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also reported during the September 2020 Board hearing that he received treatment for his low back disability at the VA medical center in San Jose with Dr. Lee Yang. The Veteran reported that he has only received treatment at VA. A review of the treatment records does not show any VA treatment records related to the low back disability, except to note the Veteran’s low back pain, nor are there any VA treatment records specifying Dr. Lee Yang as the treating provider. See March 2014 CAPRI and January 2015 CAPRI. The Board notes that the VA treatment records associated with the claims file are limited from 2012 to 2014. Thus, a remand is warranted to obtain any outstanding pertinent VA treatment records. The Board also notes that the Veteran reported injuring his low back when he fell going down a ladder during his military service. He reported that since then he has had continued back problems. See September 2020 Hearing Transcript. A review of the STRs also show that in November 1973, he had slipped on a stairwell leading down to the forward engine room, causing injury to his lower back. See April 2014 STR – Medical. Generally, service connection may be granted for disability due to disease or injury during periods of active duty for training (ACDUTRA) or injury during inactive duty training (INACDUTRA) (but not for disability incurred or aggravated during reserve status not while on ACDUTRA or INACDUTRA). On remand, the AOJ should contact the appropriate service department and verify all periods of the Veteran’s service, including all specific periods of INACDUTRA and ACDUTRA, in order to permit a determination to be made as to whether the Veteran’s low back disability had its onset during a period of active service, ACDUTRA, or INACDUTRA. The matters are REMANDED for the following action: 1. Take all appropriate steps to obtain all outstanding treatment records, to include VA treatment records as related to the low back disability and with Dr. Lee Yang as the VA treating provider. If any requested records are unavailable, the Veteran should be notified to that effect. 2. The AOJ should contact the appropriate service department or departments to verify the specific dates of any Reserve service, to include all of the periods of ACDUTRA and INACDUTRA. In particular, the Board is interesting in ascertaining what type of service the Veteran had in November 1973. 3. After development #2 is completed, the AOJ should prepare a memorandum for the claims file which identifies all periods of service, to include any Reserve service which may be qualifying for service connection purposes, whether that may be ACDUTRA or INACDUTRA service. If any such records are unavailable, a formal finding of unavailability should be made and associated with the claims file. 4. After development #1, #2, and #3 are completed, schedule the Veteran for a VA examination to determine the etiology of any low back disability. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner is requested to complete the following: (a) Identify any low back diagnoses found to be present since the date of the claim (from 2014). If the Veteran’s low back pain cannot be attributed to an underlying diagnosis, still address whether any such condition manifests in functional impairment such as limitation of motion, weakness, instability, or the like. A condition manifested by pain and functional impairment is in fact a disability for VA purposes. (b) For an identified low back disability, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the disability had its onset during or is otherwise related to his military service, to include the verified periods of active service, ACDUTRA, and/or INACDUTRA. The examiner should address the Veteran’s lay statements regarding low back injury during military service as well as the November 1973 STR noting the Veteran’s injury to the lower back. (c) For an identified low back disability, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the disability is proximately due to any of the Veteran’s service-connected disability, to include the service-connected right ankle disability. (d) For an identified low back disability, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the disability is aggravated by any of the Veteran’s service-connected disability, to include the service-connected right ankle disability. The examiner should assume that the lay statements of record and September 2020 Board hearing testimony are credible for the limited purpose of providing the requested medical opinions. 5. After development #1 and #2 are completed, obtain an addendum opinion to the February 2015 VA examination. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner is then requested to opine: (a) Is it at least as likely as not (e.g. at least a 50 percent probability or greater) that his left ankle disability is proximately due to any of the Veteran’s service-connected disability, to include the service-connected right ankle disability? (b) Is it at least as likely as not (e.g. at least a 50 percent probability or greater) that his left ankle disability is aggravated by any of the Veteran’s service-connected disability, to include the service-connected right ankle disability? The examiner should assume that the lay statements of record and September 2020 Board hearing testimony are credible for the limited purpose of providing the requested medical opinions. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.